University  of  California  •  Berkeley 
GIFT   OP 

PROFESSOR  LYSLE  E.  SHAFFER 


Mining  Rights 

ON  THE  PUBLIC  DOMAIN 

Lode  and  Placer  Claims 


TUNNELS,  MILL  SITES 
AND  WATER  RIGHTS 

Statutes,  Decisions,  Forms  and  Land 
Office  Procedure 


FOR  PROSPECTORS,  ATTORNEYS,  SURVEYORS 
AND  MINING  COMPANIES 

::x 

BY  R.  S.  MORRISON  AND  F.MILIO  D.  DE  SOTO 
'  OF  THE  COLORADO  BAR 


13TH  EDITION 
REVISED  AND  ENLARGED 


Denver.  Colorado 

The  Smith-Brooks  Printing  Company 
1908 


COPYKKJIIT.    1908 
BY 

K.  s.  MOKKISON  AND  EMILIO  D.  DE  SOTO 


> 

EDWIN  J.  COLLINS. 


MINING  RIGHTS 


DISTRICT    RULES. 

The  origin  of  Mining  Districts  and  of  their 
Rules  was  in  the  mining  camps  of  California,  in 
1849,  before  any  territorial  form  of  government  had 
been  established,  and  the  same  system  was  followed 
and  prevailed  wherever  valuable  discoveries  in  other 
sections  induced  an  influx  of  prospectors. 

Practically  all  the  Pacific  slope  and  the  land 
east  of  the  mountains  to  the  Missouri  river  was  then 
public  domain.  The  vast  ore  bodies  of  the  Comstock, 
the  wealth  of  Alder  Gulch,  the  veins  and  placers 
of  Pike's  Peak,  and  of  countless  intermediate  min- 
eral localities  were  all  appropriated  and  their  values 
extracted  under  the  protection  of  this  form  of  local 
self-government  for  many  years,  with  no  paternal  in- 
terference by  the  National  Legislature. 

Each  local  camp  called  itself  a  Mining  District 
as  defined  by  the  action  of  a  mass  meeting  of  the 
miners.  Some  of  them  were  less  than  a  mile  square, 
others  quite  extensive,  and  they  have  become  per- 
manent geographical  divisions  for  purpose  of  de- 
scription in  the  conveyance  of  real  estate  of  all 
kinds  in  the  mining  counties. 

After  defining  the  name  and  local  extent  of  the 
District  these  meetings  usually  designated  certain 
officials  to  be  elected  from  time  to  time,  and 

CONTRACTIONS. 

A.  C. — Act  of  Congress. 

F. — Federal  Reporter. 

L.  D. — Land  Decisions  of  the  Interior  Department. 

If.  R. — Morrison's  Mining  Reports.      (Vols.  1-22.) 

P. — Pacific  Report,  i. 

R.  8.— Revised  Statutes  of  the  United  States. 

R.  8.  Colo. — Revised  Statutes  of  Colorado  (1908). 


VJlAJilZlJ 

4  DISTRICT  RULES. 

then  proceeded  to  adopt  rules  regulating  the  size  of 
claims,  prerequisites  of  location  and  for  annual  labor 
or  periodical  representation  in  some  form. 

Before  the  territorial  organizations  were  com- 
plete, and  while  the  diggings  were  remote  from  or- 
ganized society,  they  often  took  a  much  wider  scope 
and  provisions  were  made  for  executive  officers,  for 
miners'  courts,  and  covering  all  sorts  of  subjects. 
But  these  incidents  have  long  since  ceased. 

Where  the  districts,  as  quasi  municipal  organ- 
izations, have  been  abandoned,  provision  has  gen- 
erally been  made  to  preserve  their  records  in  the 
County  Recorder's  office. 

With  almost  no  interference  by  State  or  Terri- 
torial Acts  they  were  the  mining  laws  of  the  land 
until  the  Act  of  Congress  of  July  26,  1866.  This  but 
slightly  limited  their  authority,  but  the  Act  of  May 
10,  1872,  covered  so  many  essential  incidents,  and 
has  been  so  supplemented  by  State  and  Territorial 
legislation,  that  they  have  been  gradually  abandoned, 
and  survive  now  only  as  a  name  of  description. 

Only  in  California,  Utah  and  Alaska  are  the 
organizations  still  preserved  to  any  extent.  Where 
not  extinct  their  existence  is  practically  confined  to 
the  keeping  of  district  records  for  the  registry  of 
locations,  with  regulations  defining  the  size  of  claims 
and  details  of  location.  Undoubtedly  where  there  is 
no  State  or  Territorial  Statute  a  district  can  yet  be 
organized,  and  details  of  location  fixed  by  its  rules, 
but  any  attempt  to  revive  old  districts  or  enact  new 
district  rules  in  any  State  or  Territory  which  has 
any  pretense  of  a  mining  code  would  only  tend  to 
confusion. 

The  details  of  these  rules  were  not  altogether 
arbitrary  or  experimental.  In  many  respects  they 
followed  precedents  already  long  established  in 
Spain  and  Mexico.  The  requirements  of  discovery 
and  discovery  shaft,  of  sinking  and  record,  period- 
ical labor,  forfeiture  for  non-representation,  and 
many  others,  are  duplicates,  more  or  less  close,  of 
like  provisions  of  the  Royal  Code  of  1783,  but  en- 
acted by  these  local  conventions  of  practical  miners 


DISTRICT  RULES.  5 

in  entire  ignorance  of  the  existence  of  such  code. 
— Rockwell's  Sp.  d  Mex.  l 

For  instances  of  the  form  and  contents  of  Dis- 
trict Rules  see  llth  edition,  p.  5. 

The  rules  under  which  the  Comstock  lode  was 
located  are  printed  in  Kinncy  v.  Cons.  Va.  Co.  10  M.  R. 

Unorganized  Districts. 

A  mining  title  may  he  proved  without  either 
district  organization  or  proof  of  district  rules. — 
Golden  Fleece  Co.  v.  Cable  Co.  1  M.  R.  120;  12  Nev. 
312. 

Where  land  office  or  other  forms  contain  a  blank 
for  the  name  of  the  mining  district,  and  no  district 
has  ever  been  formed,  it  is  usual  to  fill  such  blank 
with  tlu»  word  "Unorganized."  And  there  is  no  doubt 
that  a  mining  district  may  exist  to  the  extent  of  giv- 
ing a  name  to  a  locality  and  limited  to  that  extent, 
and  such  name,  when  adopted  by  common  consent,  is 
as  valid  as  if  adopted  at  a  district  meeting. 

The  term  mining  district  has  a  well  known  mean- 
ing while  the  term  mineral  district  is  only  a  vague 
and  indefinite  generalization. — U.  8.  v.  Smith,  11  F. 

New  Districts  in  Alaska. 

The  Alaska  Act  (post  ALASKA),  recognizes  old 
district  organizations,  provides  for  new  ones  and 
contemplates  the  passage  of  district  rules.  Upon 
the  organization  of  a  district  the  minutes  of 
first  meeting  should  show  that  it  was  called  by 
public  notice  and  attended  by  a  majority  of  the 
miners  either  personally  or  by  representation; 
should  define  boundaries;  elect  permanent  Chairman 
and  Recorder;  restrict  size  of  placer  claims  in 
crowded  diggings,  leave  lode  claims  to  the  full  size 
allowed  by  the  Act  of  Congress,  and  make  special 
provision  for  the  keeping  of  permanent  and  acces- 
sible records. 


6  DISTRICT  RULES. 

Judicial  Decisions  as  to  District  Rules. 

Where  in  ejectment  for  a  mining  claim  the  plain- 
tiff has  described  the  same  as  located  under  district 
rules,  he  may  recover  without  proof  of  the  existence 
of  such  rules  by  evidence  of  his  prior  possession  and 
the  entry  of  defendant;  but  if  his  prima  facie  case 
on  possession  is  negatived  by  any  title  proved  by  de- 
fendant he  must  then  show  the  existence  of  the  dis- 
trict rules  and  his  compliance  therewith  before  he 
can  introduce  his  location  or  record  made  under 
such  rules. — Sears  v.  Taylor,  5  M.  R.  318;  4  Colo.  38. 

Courts  will  not  inquire  into  the  regularity  of  the 
mode  by  which  district  rules  have  been  enacted,  ex- 
cept upon  allegation  of  fraud,  or  other  like  cause. — 
Gore  v.  McBrayer.  1  M.  R.  645 ;  18  Cal.  583. 

Where  the  evidence  renders  it  doubtful  whether 
the  written  laws  of  the  district  are  in  force,  both  the 
written  laws  and  parol  proof  of  the  mining  customs 
may  be  offered  in  evidence. — Colman  v.  Clement*.  ~> 
M.  R.  &f7;  ..'.*  (V//.  !45. 

District  Records. 

A  district  record  kept  in  a  pocket  diary  is  no 
record.— Fuller  v.  Harris,  29  F.  N/'/.  A  district  re- 
corder can  not  appoint  a  deputy. — Van  Buren  v. 
McKinley,  66  P.  936. 

Once  proved  to  exist  are  presumed  to  continue. — 
Riborado  v.  Quang  Pang  M.  Co.  6  P.  l.!~>. 

The  land  office,  in  patent  applications,  has  the 
power  to  decide  what  rules  are  in  force. — Parleys 
Park  Co.  v.  Kerr,  130  U.  8.  256. 

A  mining  regulation  can  not  restrict  the  num- 
ber of  claims  which  a  party  may  hold  by  purchase. — 
Prosser  v.  Parks.  4  M.  R.  452;  18  Cal  J7. 

A  district  rule  can  not  limit  the  size  of  a  claim 
duly  located  before  such  rule  was  adopted. — Table 
Mt.  Co.  v.  Stranahan,  9  M.  R.  465;  21  Cal.  .if*. 

A  right  to  hold  a  claim  may  be  forfeited  by  fail- 
ure to  comply  with  the  district  rules. — St.  John  v. 
Kidd,  Jf  M.  R.  454;  26  Cal.  26  >h  But  not  unless  the 
rule  itself  so  expressly  provides. — Bell  v.  Bed  Rock 


U.  S.  LICENSE.  7 

Co.  1  M.  /,'.    /.<:  56  f'(/7.   U4;  Emerson  v.  McWhirter, 
See   Yosemite  Co.  v.  Emer*  ('. 

/,'..   196. 

A  valid  district  rule  may  exist  and  be  proved, 
although  not  found  among  other  written  rules  of 
the  distrirt.  Ihirvey  v.  Ryan.  /  M.  I!.  /.'">;  }..'  Co/. 

o& 

A  custom,  reasonable  in  itself,  and  generally  ob- 
served, will  prevail  against  a  written  mining  regula- 
tion which  has  fallen  into  disuse. — Id.  The  exist- 
ence of  a  district  mining  law  is  a  question  of  fact  for 
the  jury. 

Effect  of  Mining  Codes. 

Arizona,  Colorado,  Idaho,  Montana,  Nevada,  New 
Mexico,  North  and  South  Dakota,  Oregon,  Washing- 
ton and  NYyoming  have  adopted  more  or  less  com- 
plete mining  codes.  In  California,  Utah  and  Alaska 
much  more  is  left  to  the  control  of  the  district  or- 
ganizations, but  the  inclination  in  all  is  toward  stat- 
utory regulations  and  on  whatever  point  the  statute 
is  made  to  cover  the  authority  of  the  district  rules 
ceases,  except  as  to  rights  already  vested.  The  ten- 
dency is  thus  to  their  ultimate  extinction.  See  STAT- 
UTORY Ri -:<>i  na  MKNTS  and  RECORD. 


CONGRESSIONAL  RECOGNITION  OF  MINERS' 
RIGHTS. 


License  to  Appropriate  the  Public  Domain. 

K.  S.  Sec.  010. — No  possessory  action  between  per- 
sons, in  any  court  of  the  United  States,  for  the  recovery  of 
MII.V  mining  title,  or  for  damages  to  any  such  title,  shall  be 
affected  by  the  fact  that  the  paramount  title  to  the  land  in 
which  such  mines  lie  is  in  the  United  States;  but  each  case 
shall  be  adjudged  by  the  law  of  possession. — Sec.  9,  A.  C. 
I  •  >>.  27,  1865. 

License  Under  Congressional  Act  of  1866. 

Sec.  1. — The  mineral  lands  of  the  public  domain, 
both  surveyed  and  unsurveyed,  are  hereby  declared  to  be 
free  and  open  to  exploration  and  occupation  by  all  citi/'-ns 


8  U.  S.  LICENSE. 

<*f  the  United  States,  and  those  who  have  declared  their 
intention  to  become  citizens,  subject  to  such  regulation- 
may  be  prescribed  by  law,  and  subject  also  to  the  local  cus- 
toms or  rules  of  miners  in  the  several  mining  districts,  so 
far  as  the  same  may  not  be  in  conflict  with  the  laws  of  the 
United  States.— July  26,  1866.  Repealed  May  10,  1872. 

License  Under  Present  Congressional  Law. 

R.  S.  Sec.  2319. — All  valuable  mineral  deposits  In 
lands  belonging  to  the  United  States,  both  surveyed  and  un- 
surveyed,  are  hereby  declared  to  be  free  and  open  to  explor- 
ation and  purchase,  and  the  lands  in  which  they  are  found 
to  occupation  and  purchase,  by  citizens  of  the  Unit'<l 
States  and  those  who  have  declared  th«>ir  intention  i«>  !••• 
come  such,  under  regulations  prescribed  by  law.  and  ac- 
cording to  the  local  customs  or  rules  of  miners  in  the  sev- 
eral mining  districts,  so  far  as  the  same  are  applicable  and 
not  inconsistent  with  the  laws  of  the  United  States.- 
1,  A.  C.  May  10,  1872. 

Section  910  contains  the  first  Congressional  rec- 
ognition of  the  fact  that  the  mineral  lands  of  the 
United  States  were  being  appropriated  by  its  citizens. 

From  the  time,  however,  of  the  discovery  of  gold 
in  California,  the  government  had  tacitly  recognized 
the  occupation  of  its  mining  lands  as  such,  and  with- 
held them  from  survey  and  pre-emption. 

Judicial  Recognition. 

The  judiciary  of  California  and  all  the  States 
and  Territories  on  the  Pacific  slope  had  recognized 
the  "Miners'  Title"  as  property  entitled  to  protec- 
tion, and  they  were  followed  by  the  Supreme  Court 
of  the  United  States  to  the  same  effect. — Sparrow  v. 
Strong,  2  M.  R.  320;  3  Wall.  97 ;  Forbes  v.  Gracey.  1', 
M.  R.  183;  94  U.  S.  162. 

Consecutive  Acts  of  '66,  '70  and  '72. 

In  1866  the  first  Act  was  passed  looking  to  the 
absolute  disposition  of  mineral  veins.  In  1870  a  sup- 
plemental Act  was  passed  embracing  placers.  In 
1872  these  Acts  were  revised  and  the  Act  of  Congress 
of  May  10  of  that  year,  found  in  Chapter  6,  Title  32 
of  the  Revised  Statutes  of  the  United  States,  is,  with 
slight  change,  the  Congressional  law  still  in  force. 


POSSESSORY  TITLE. 


LEGAL    STATUS     OF    POSSESSORY    CLAIMS. 


The  National  Government  the  Source  of  Title. 

By  proper  expressions  in  the  Organic  Act  of  each 
Territory  or  the  Enabling  Act  of  each  State,  the  own- 
ership of  the  United  States  in  the  public  domain  is 
declared  as  fundamental  law.  The  attempt  once 
made  in  California  to  assort  a  State  ownership  in 
mines  //(As  r.  BeU,  8  Cal.  219,  has  long  ago  been 
abandoned.— Moore  v.  8mau\  J2  M.  R.  Jf29;  17  Cal. 
//'.''.  The  title  to  all  lands  in  the  French  and  Mex- 
ican cessions  is.  in  the  first  instance,  in  the  United 
States  of  America,  except  ing  grants  made  by  the 
old  governments  prior  to  the  treaties.  These  ces- 
sions iix-iude  all  land  west  of  the  Mississippi  River 
Territory  of  Oregon. 

The  fee  simple  thus  remaining  in  the  govern- 
ment, all  <  itixens.  or  persons  who  have  declared  their 
intention  to  become  citizens,  are  allowed  to  enter 
upon  the  unappropriated  public  domain  and  acquire 
title  to  mineral  lands  by  complying  with  certain  reg- 
ulations intended  to  preserve  the  peace  and  protect 
the  first  occupant. 

Before  the  passage  of  Acts  of  Congress  to  this 
effect,  the  assertion  of  claims  to  mines  by  discoverers 
had  been  recognized  by  district  rules,  local  statutes 
and  decisions  of  courts.  But  ever  since  1866  the 
matter  has  been  regulated  by  specific  Acts  of  Con- 
gress, supplemented  by  district  rules  and  local  legis- 
lation concerning  the  details  of  location  and  the 
manner  of  perfecting  title. 

Whether  a  Vested  Estate. 

That  a  possessory  mining  claim  is  a  vested  estate, 
is  no  longer  debatable.  It  is  "property  in  the  high- 
est sense  of  that  term."  Its  legal  status  is  clearly 
and  learnedly  stated  by  GILBERT,  J.,  in  O'Connell  v. 
Pinnacle  Co.  Lf/0  F.  85//.  This  opinion,  as  well  as 
the  decision  which  it  affirms  (131  F.  106),  gives  the 
distinction  between  such  a  mining  title  and  a  pos- 


10  POSSESSORY  TITLE. 

sessory  pre-emption  or  homestead  title  in  cases  of 
descent  before  patent. 

The  Miner  Holds  a  Qualified  Title  dependent 
upon  possession  and  maintained  by  compliance  with 
local  directions.  He  is  not  compelled  to  advance  Jx> 
patent  nor  to  pay  for  the  use  of  the  land,  but  his 
holding  is  of  the  same  legal  class  as  a  homestead 
or  pre-emption  and  is  in  anticipation  of  an  ultimate 
entry  and  patent.  His  title  is  not  absolute  in  a  tech- 
nical sense,  nor  secure  in  a  practical  sense,  until 
he  gets  the  fee  simple  title  by  such  proceedings. 

Abandonment. 

Such  an  estate,  dependent  upon  possession,  is 
conversely  one  which  may  be  lost  by  abandonment. 
—Merritt  v.  Judd,  6  M.  R.  62;  14  Gal.  59;  MaUett  v. 
Uncle  Sam  Co.  1  M.  R.  18;  1  Nev.  188. 

Is  a  Freehold. 

That  is  to  say,  an  estate  which  passes  to  the 
heirs. — Harris  v.  Equator  Co.  12  M.  R.  118;  8  F.  863; 
White  Star  Co.  v.  Hultberg,  77  N  E.  327;  McFeters  v. 
Pierson,  15  Colo.  201;  Keeler  v.  Trueman,  Id.  1  / .;. 

Is  Real  Estate. 

The  miner's  claim  or  title  is  real  estate  as  dis- 
tinguished from  chattel  or  personal  property  and  is 
conveyed,  sued  for,  descends,  is  devisable  and  is 
treated  in  other  respects  as  the  real  property  of  the 
occupant,  subject  only  to  the  paramount  title  of  the 
United  States. — Roseville  Co.  v.  Iowa  Gulch  Co.  16 
M.  R.  93;  15  Colo.  29;  Butte  Co.  v.  Frank,  21  M.  R. 
368;  65  P.  1;  Bakersfteld  Co.  v.  Kern  County,  77  P. 
892;  Bradford  v.  Morrison,  86  P.  6. 

But  in  Oregon  and  Washington  they  have  been 
held  to  be  personal  property. — Herron  v.  Eagle  Co. 
61  P.  411;  Phoenix  Co.  v.  Scott,  54  P.  777.  In  the 
former  state  they  are  now  declared  to  be  real  estate 
by  statute, 


SCHOOL  CLAIMS  11 

The  Distinctions  Between  Mining  Claims  and 
Other  Classes  of  Realty  are  substantially  those 
arising  out  of  the  following  incidents: 

1.  The  title  being  first  acquired  by  possession, 
it  may  be  lost  by  acts  amounting  to  a  discontinuance 
of  possession;  that  is  by  abandonment. 

2.  Annual  labor  upon  each  claim  is  required  by 
Act   of   Congress   as   a  condition    upon   the   non-per- 
formance of  which  the  same  consequences  result  as 
in  the  case  of  a  technical  abandonment;   that  is,  the 

UK!    becomes    open    to    the    entry    of    the    next 
occupant. 

3.  The  formula  of  notice  and  recording,  and  the 
method  of  initiating  title  are  subject  to   regulation 
by  the  State,  Territory  or  Mining  District,  in  details 
not  covered  by  the  Acts  of  Congress. 

4.  Special    modes  of  assessment  and   collection 
of  taxes  are  or  have  been  attempted;  but  distinctions 
of  this  sort  have  generally  been  found  impracticable. 

5.  There  are  statutes  to  prevent  forcible  dispos- 
session of  claimants,   to  allow   of   underground   sur- 
veys and  inspection  and  to  regulate  drainage. 

6.  The  mode  of  perfecting  patent  in  the  U.  S. 
Land  Office  is  wholly  different  from  that  regulating 
pre-emption  or  homestead   entries   upon  agricultural 
lands. 


SCHOOL   CLAIMS, 


Fully  one-half  of  all  the  sections  of  the  old  Colo- 
rado Statutes  on  the  subject  of  mines  was  taken  up 
by  a  persistent  attempt  to  force  a  "School  Claim"  on 
each  location.  The  whole  effort  was  in  violation  of 
the  Organic  Act,  and  has  been  held  absolutely  null 
and  void  as  well  by  the  courts  as  by  the  land  office, 
and  repudiated  by  the  miners  as  an  attempt  to  put 
the  whole  cost  of  schools  on  a  class  of  men  who,  as 
a  rule,  were  not  persons  with  families. 

By  Act  of  1862,  claim  No.  3,  east  or  west,  was  to 
be  set  apart  for  schools;  by  Act  of  1866,  one  side 


12  SOLDIERS'  CLAIMS. 

claim  on  each  end  of  the  discovery  claim  of  1,400  feet 
was  to  be  recorded — 100  feet  for  schools  and  100  feet 
for  disabled  miners. 


SOLDIERS'  CLAIMS. 


By  Territorial  Acts  passed  in  instances  during 
the  civil  war,  claims  belonging  to  soldiers  were  pro 
tected  from  forfeiture  during  enlistment  and  for  a 
reasonable  time  thereafter;  they  were  also  allowed 
to  locate  and  record  claims  by  proxy;  and  their  titles 
were  protected  from  sale  on  execution  during  their 
absence. 

During  the  Spanish  war  Congress  passed  an  act, 
approved  July  2,  1898,  relieving  volunteers  from  per- 
formance of  annual  labor  during  their  term  of  serv- 
ice. It  required  the  record  of  a  notice  stating  the 
fact  of  enlistment  and  of  "His  desire  to  hold  said 
claim  under  this  Act." — 30  St.  L.  651;  Mining  Rights 
llth  Ed.  16.  A  notice  filed  under  this  Act  was  con- 
sidered in  Field  v.  Tanner,  75  P.  916. 

Co-owners  with  such  volunteers  were  required 
to  do  their  proportion  of  the  work,  and  in  default  of 
such  labor  their  interest  might  be  forfeited  to  any 
person  who  entered  and  did  such  work  during  the 
ensuing  year. 


LENGTH  OF  LODE  CLAIM  LOCATED  BEFORE 
MAY  10,  1872. 


3,000-Foot  Act  of  Congress  of  1866. 

See.  4.  *  *  *  No  location  hereafter  made  shall 
exceed  two  hundred  feet  in  length  alone  the  Vein  for  each 
locator,  with  an  additional  claim  for  discovery  to  the  dis- 
coverer of  the  lode,  with  the  right  to  follow  such  vein  to 
any  depth,  with  all  its  dips,  variations,  and  angles,  together 
with  a  reasonable  quantity  of  surface  for  the  convenient 
working  of  the  same*  as  fixed  by  local  rules.  And  provided 
further.  That  no  person  may  make  more  than  one  location 
on  the  same  lode,  and  not  more  than  three  thousand  feet 


LENGTH  OF  OLD  LODE  CLAIM.  13 

shall  l>o  t:ik«'ii  in  any  one  claim  by  any  association  of  per- 
sons.— July  £6,  1866.  Repealed  May  10,  1872. 

Before  the  Act  of  Congress  of  1866  the  length 
of  lode  claims  was  regulated  either  by  district  rules 
or  by  State  or  Territorial  legislation.  It  was  by 
no  means  uniform.  Short  lengths  of  100  or  200  feet, 
sometimes  as  low  as  fifty  feet  or  less,  were  the  limi- 
tations under  the  older  district  rules.  In  later  years 
the  tendency  was  to  allow  longer  claims.  0In  Colo- 
rado the  statute  fixed  the  length  of  a  claim  in  1861 
at  100  feet.  In  1866  at  1,400  feet.  The  Act  of  Con- 
gress of  1866  allowed  400  feet  to  the  discoverer  and 
a  claim  of  200  feet  to  each  associate  locator,  not  ex- 
ceeding 3,000  feet  on  the  lode  under  one  location. 

Associates  and  Side  Claims. 

It  is  impossible  to  understand  the  limitations  on 
the  size  of  claims  without  considering  a  certain  cus- 
tom which  originated  in  the  earliest  mining  camps 
of  California,  and  became  a  general  practice  over  the 
western  slope.  With  slight  local  modifications  this 
custom  was  for  the  discoverer  to  record  a  notice  that 
he  claimed  50,  100  or  200  feet,  as  the  case  might  be, 
on  a  certain  lode.  On  the  same  paper,  or  by  a  sepa- 
rate paper  signed  later,  other  parties,  real  or  nominal 
associates  of  the  discoverer,  would  give  notice  of 
claim  to  No.  1  East,  No.  1  West,  etc.,  on  the  same  lode. 
Not  only  would  the  associates  of  the  discoverer  make 
such  records,  but  often  third  parties,  without  even 
going  on  the  ground,  would  file  on  these  side  claims 
— in  instances  to  the  extent  of  several  thousand  feet 
on  each  side  from  the  discovery  claim. 

Joint  Records. 

In  other  districts  the  discoverer  and  his  asso- 
ciates would  file  on  the  discovery  claim,  No.  1  East, 
No.  1  West,  No.  2  West,  etc.,  indefinitely  by  a  joint 
location  certificate,  not  attempting  to  segregate  the 
feet  claimed  by  one  from  the  feet  claimed  by  the 
other. 


14  LENGTH  OF  OLD  LODE  CLAIM. 

Record  Without  Location  Work. 

These  side  claims,  whether  taken  separately  or 
as  one  joint  location,  were  supposed  to  be  at  least 
staked  off  on  the  ground,  but  no  discovery  hole  was 
required,  and,  in  fact,  in  most  cases,  only  the  paper 
record  was  made  and  the  claims  seldom  pursued  fur- 
ther, unless  developments  on  the  discovery  claim 
seemed  to  indicate  that  the  side  claims  might  be  of 
value.  Such  was  not  the  original  intention  of  the 
miners,  but  the  custom  degenerated  to  this,  and  the 
records  of  thousands  of  such  claims  remain,  whose 
owners  never  did  any  work  upon,  nor  ever  knew  the 
exact  situation  of  their  claims. 

Nominal  Associates  Conveying  to  Discoverer. 

This  privilege  to  locate  side  claims  was  soon 
taken  advantage  of  by  the  discoverer,  who  procured 
nominal  parties  to  record,  and  immediately  after 
recording  to  convey  their  claims  to  him,  and  as  soon 
as  the  Act  of  Congress,  1866,  was  passed,  such  be- 
came the  universal  practice,  the  custom  as  it  already 
existed  being  altered  only  in  this:  That  the  claims 
were  no  longer  numbered,  but  were  taken  together 
as  a  joint  location  by  a  supposed  association  of  four- 
teen persons,  taking  fifteen  claims  of  200  feet  each, 
or  3,000  feet  in  all — the  discoverer  being  allowed  one 
additional  claim.  Further,  after  the  passage  of  such 
Act,  the  staking  of  the  lode  into  its  several  claims 
was  abandoned  altogether.  Before  the  Act  each  lo- 
cator usually  recorded  one  specific  claim,  in  which 
the  other  locators  had  no  interest,  nor  he  in  theirs, 
but  after  the  Act,  the  record  almost  always  showed 
a  joint  location  of  undivided  claims. 

Validity  of  Such  Nominal  Records. 

It  is  more  than  doubtful  whether  at  any  time, 
as  against  an  adverse  bona  fide  claim,  such  nominal 
side  claims  were  by  the  record  alone,  of  any  validity, 
unless  actually  possessed  and  defined  upon  the  ground 
in  some  manner;  Cons.  Rep.  Co.  v.  Lebanon  Co.  15 
M.  R.  490;  9  Colo.  343;  Becker  v.  Pugh,  15  M.  R.  304; 


PRESENT  LENGTH,  OF  LODE  CLAIMS  15 

0  Colo.  589;  Hess  v.  Win<l<*r.  /.'  M.  It.  til;  30  Gal.  3',»: 
but  the  practice  of  the  Land  Office  is  to  patent  siu-h 
claims  without  inquiry,  if  sufficient  development  for 
patent  has  been  done  on  any  one  of  them,  or  on  the 
discovery. 

Length  of  Lode  Claim  at  Various  Dates  in  Colorado. 

1.  Prior   to   N..V.   7.    1861,  the  length  of  a  lode 
claim    was   fixed    by    district    rules. 

2.  From    Nov.    7,   1861,    to   March    11,    1864,   the 
length  of  a  claim  was  100  feet,  but  an  indefinite  num- 
ber of  claims  could  be  based  on  a  single  discovery. 

3.  From    March    11.    1864,   to    Feb.    9,    1866,    100 
feet  was  the  length  of  a  claim,  and  sixteen  claims 
of  that  length  could  be  based  on  a  single  discovery. 

4.  From  Feb.  9,  1866,  to  July  26,  1866,  1,400  feet 
was  the  length  of  a  claim  and  the  limit  of  a  location. 

5.  From  July  26,  1866,  to  Feb.  11,  1870,  200  feet 
was  the  length  of  a  claim  and   1,400  feet  could  be 
taken  under  one  location. 

6.  From  Feb.  11,  187(5,  to  May  10,  1872,  200  feet 
was  the  length  of  a  claim  and  3,000  feet  could  be 
taken   under  one  location. 

7.  Since  May  10,  1872,  1,500  feet  is  the  length 
of  a  claim. 


LENGTH  OF  LOBE  CLAIM  SINCE  MAY  10,  1872. 
Not  to  Exceed  1,500  Feet. 

K.  s  Bee.  - •'"-'".  Mining-claims  upon  veins  or  lodes 
of  quartz  or  other  rock  in  place  bearing  gold,  silver,  cinna- 
bar, lead,  tin,  copper,  or  other  valuable  deposits,  heretofore 
located,  shall  be  governed  as  to  length  along  the  vein  or 
lode  by  the  customs,  regulations,  and  laws  in  force  at  the 
<lat»>  of  their  location.  A  mining-claim  located  after  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two, 
whether  located  by  one  or  more  persons,  may  equal,  but 
shall  not  exceed,  one  thousand  five  hundred  feet  in  length 
along  the  vein  or  lode  :  *  *  *  — Sec.  2,  May  10,  1872. 

Since  May  10,  1872,  1,500  Feet  has  been  the  well- 
known  limit  of  a  lode.  This  number  of  feet  consti- 
tutes one  undivided  claim,  or  one  lode  as  the  word 


16  PRESENT  LENGTH  OF  LODE  CLAIMS. 

is  commonly  used — that  is,  so  much  of  a  vein  as 
is  covered  by  one  location  based  upon  a  single  dis- 
covery— and  in  practice  so  much  of  one  vein  as  is 
known  by  a  single  name  and  covered  by  a  single 
record.  The  length  of  1,500  feet  is  the  uniform 
length  wherever  the  mining  acts  are  in  force.  A 
State  Statute  could  not  shorten  this  length  in  oppo- 
sition to  the  positive  permission  of  the  Act  of  Con- 
gress above  printed.  It  is  the  length  almost  invari- 
ably expressed  in  the  location  certificate  and  is  rarely 
shortened  except  where  only  a  fraction  of  clear 
ground  remains  to  be  taken  up. 

Length — How  Distributed. 

This  length,  by  common  usage,  is  taken  750  feet 
on  each  side  of  center  of  discovery;  but  it  may  be 
'taken  all  on  one  side  except  enough  to  include  the 
discovery  shaft  itself,  or  it  may  be  distributed  in  any 
desired  proportion  from  the  center  of  the  discovery 
shaft. 

Location  of  Excessive  Length. 

The  import  of  the  decisions  on  this  point  seems 
to  be  that  an  inadvertent  over-stepping  of  the  legal 
length  or  width  will  not  avoid  the  claim;  Richmond 
Co.  v.  Rose,  114  U.  8.  576;  Burke  v.  McDonald,  11 
M.  R.  325;  33  P.  Jt9 ;  Hanson  v.  Fletcher,  37  P.  480; 
McElligott  v.  Krogh,  90  P.  S23;  but  that  the  claim 
as  to  the  excess  is  void ;  Hausivirth  v.  Butcher,  4 
Mont.  299;  Oohres  v.  Illinois  Co.  67  P.  666;  McPherson 
v.  Julius,  95  N.  W.  428;  and  that  a  gross  excess 
(1,763  instead  of  1,500  feet)  made  without  excuse 
will  defeat  the  whole  location. — Leggatt  v.  Stewart, 
15  M.  R.  358;  5  Mont.  107. 

An  excess  staking  in  length  or  width  does  not 
invalidate,  except  as  to  the  excess,  when  made  with- 
out fraud  (in  this  case  by  stepping  the  lines)  and 
the  mistake  has  been  corrected  before  the  rights  of 
third  parties  attached. — Stem-Winder  Co.  v.  Emma 
Co.  21  P.  1040. 


WIDTH  OF  OLD  LODE  CLAIMS.  17 

But  where  the  excess  was  such  that  the  end  stakes 
could  not  be  found  on  search  within  several  hundred 
feet  the  location  is  not  valid. — Ledoux  v.  Forester,  '.> / 
F.  600. 


WIDTH   OF  LODE  CLAIM  LOCATED   BEFORE 
MAY  10,   1872. 


Indefinite  Under  A.  C.  1866. 

4.        No    location     lirlVMl'hT    made    shall     OXCCed    tWO 

hundred  feet  ****••  together  with  a  reason- 
able quantity  of  surfa, •••  for  the  convenient  working  of  the 
same,  as  fixed  bv  local  rul«s.  ./»////  26,  1866.  lf>i»ul><l  May 

. 

Colorado  50-Foot  Act  of  1866. 

i  (MI  all  iniii. Tal  lodes  or  veins  of  gold-bear- 
ing OTC0,  or  of  -ii\«-r  or  other  valuable  minerals  in  this  Ter- 
ritory, i  he  owner  or  owners  of  all  such  deposits  shall,  by 

vim i    priority  of  discovery,   be  deemed  and   held   to  be 

the  owner  or  owners  of  all  spurs,  off-shoots,  dips,  angles, 
TOSS  or  parallel  veins  of  any  character  or  name 
whatsoever,  lying  and  being  within  the  limits  of  twenty-five 
feet  in  either  direction  from  the  center  of  said  first  discov- 
ered lode  or  vein. — Feb.  9,  1866. 

The  district  rules  usually  allowed  a  surface 
width  of  fifty  feet;  sometimes  more,  often  less.  The 
Act  of  February  9,  1866,  made  twenty-five  feet  on 
each  side  of  the  center  of  the  vein  the  width  of  the 
claim  by  implication  only,  and  yet  was  generally 
construed  as  restricting  width  of  claims  throughout 
Colorado;  and  this  was  the  only  mention  of  the  sub- 
ject in  the  Colorado  Statutes  prior  to  1874. 

The  A.  C.  1866  allowed  a  "reasonable  quantity" 
of  surface,  but  the  Territorial  Statute  of  the  same 
year  was  taken  as  fixing  the  amount  as  above  stated, 
at  fifty  feet. 

In  the  other  States  and  Territories  the  width  was 
almost  invariably,  as  it  still  is  in  some  of  them,  fixed 
by  district  regulation  alone,  without  reference  to  the 
subject  by  the  legislature.— Parley's  Park  Co.  v. 
Kerr,  11  M.  R.  201;  ISO  U.  8.  256. 


18  PRESENT  WIDTH  OF  LODE  CLAIMS. 

Prior  to  the  Act  of  Congress  of  1872,  the  width  of 
claims  had  been  considered  merely  as  a  question  of 
sufficient  surface  for  convenient  working. 


WIDTH  OF  LODE  CLAIM  SINCE  MAY  10,  1872. 


Limits  Allowed  by  Present  U.  S.  Law. 

K.  S.  Sec.  2320.  *  *  *  No  claim  shall  extend 
more  than  three  hundred  feet  on  each  side  of  the  middle  of 
the  vein  at  the  surface,  nor  shall  any  claim  be  limit »•<!  i>y 
any  mining  regulation  to  less  than  twenty-five  feet  on  »•;«< -ii 
side  of  the  middle  of  the  vein  at  the  surface,  except  where 
adverse  rights  existing  on  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two,  render  such  limitation  necess.ny 
The  end-lines  of  each  claim  shall  be  parallel  to  each  other. — 
Sec.  2,  May  10,  1872. 

Present  Width  Fixed  by  Colorado  Statute. 

R.  S.  Colo.  Sec.  4193. — The  width  of  lod<>  < -hums 
hereafter  located  in  Gilpin,  Clear  Creek,  Boulder  and  SHIM 
rait  counties,  shall  be  seventy-five  feet  on  each  side  of  tli- 
center  of  the  vein  or  crevice ;  and  In  all  other  counties 
the  width  of  the  same  shall  be  one  hundred  and  fifty  feet 
on  each  side  of  the  center  of  the  vein  or  crevice:  Provided, 
That  hereafter  any  county  may,  at  any  general  election, 
determine  upon  a  greater  width  not  exceeding  three  hun- 
dred feet  on  each  side  of  the  center  of  the  vein  or  lod<>.  l.y 
a  majority  of  the  legal  votes  cast  at  said  election,  and  :my 
county  by  such  vote  at  such  election  may  determine  upon 
a  less  width  than  above  specified. — Feb.  13,  1874.  In  force 
•finic  15,  1874. 

Between  May,  1872,  and  June,  1874. 

Between  May  10,  1872,  when  the  Congressional 
section  in  regard  to  width  was  passed,  and  June  15, 
1874,  when  the  Colorado  Act  took  effect,  the  width  of 
all  lode  claims  remained  fixed  at  fifty  feet  under  the 
Territorial  Act  of  1866,  printed  on  page  11. 

Colorado,  300  Feet  Except  in  Certain  Counties. 

The  A.  C.  of  1872,  having  allowed  to  the  locator 
all  the  veins  within  the  side  lines  of  his  claim, 
gave  at  once  to  the  question  of  width  an  importance 
before  unknown.  The  Legislature  having  in  their 


PRESENT  WIDTH  OP  LODE  CLAIMS.  19 

power  to  choose  between  the  extreme  width  of  600 
feet  and  the  minimum  width  of  fifty  feet,  a  great 
difference  of  opinion  resulted  in  that  State,  citizens 
of  the  older  mining  counties  generally  contending 
for  a  narrow  width,  while  in  the  new  districts  the 
greater  width  was  desired;  after  great  debate  it  was 
fixed  at  150  feet  for  Gilpin,  Clear  Creek,  Boulder  and 
Summit  counties,  and  at  300  feet  in  all  other  coun- 
ties. 

Xo  instance  is  known  to  the  author  of  any  at- 
tempt in  any  county,  to  change  the  width  by  an  elec- 
tion held  under  the  proviso  above  printed  and  the 
constitutionality  of  any  such  proceeding,  if  attempted, 
would  admit  of  very  great  doubt. 

All  the  Other  States  and  Territories  allow  the  full 
limit  of  600  feet  width,  except  where  the  district 
rules  fix  a  narrower  limit,  which  they  rarely  now 
purport  to  do;  and  except  also  North  Dakota,  which 
fixes  the  width  at  300  feet,  allowing  counties  to  in- 
crease or  decrease  it  within  the  Congressional  limit. 

Center  of  Vein,  Center  of  Claim. 

It  will  be  observed  that  the  center  of  the  lode  is 
made  the  center  of  this  width.  If,  therefore,  a  party 
attempt  to  locate  more  than  half  the  extreme  width 
on  either  side  of  his  vein,  the  location  of  such  ex- 
cess is  without  the  authority  of  law,  although  the  en- 
tire width  be  within  the  statutory  limit. — Taylor  v. 
Parenteau,  23  Colo.  368. 

By  Statute,  in  Wyoming,  the  discovery  shaft  must 
be  equi-distant  from  the  side  lines  of  the  claim. 

Location  of  Excessive  Width. 

The  Surveyor-General  will  not  issue  an  order  for 
survey  for  patent  upon  a  location  certificate  which 
claims,  in  terms,  on  its  face,  more  than  the  total 
width  allowed  or  with  an  excess  of  more  than  one- 
half  of  the  legal  width  on  either  side  of  the  center 
of  the  discovery  vein,  and  it  is  doubtful  whether  any 
court  would  receive  such  certificate  in  evidence. 


20  PRESENT  WIDTH  OF  LODE  CLAIMS. 

Such  mistakes  are  the  work  of  surveyors  who  under- 
take to  put  their  field  notes  into  the  form  of  a  lo- 
cation certificate  in  total  ignorance  of  what  consti- 
tutes a  valid  location  certificate.  This  document 
should  be  drawn  by  a  competent  attorney. 

But  there  is  nothing  to  prevent  a  location  of 
one-half  the  statutory  width  on  one  side  the  center 
of  the  vein  and  less  than  one-half  on  the  other  side 
of  such  center  line. 

A  location  of  excessive  width  is  not  void  and  a 
second  location  can  not  on  such  pretense  take  in  the 
actual  workings  of  the  first  party. — Mclntosh  v. 
Price,  121  F.  716. 

Where  the  lines  were  in  zigzag  form,  thus  mak- 
ing excessive  width,  the  department  required  an 
amended  survey. — 34  L.  D.  4^0- 

Excess  by  Vein  Approaching  Side  Line. 

It  is  true  that  it  may  not  be  known  when  the 
stakes  are  set  what  the  course  of  the  lode  may  be, 
and  honest  errors  in  this  respect  may  readily  be  com- 
mitted; but  the  vein  being  the  basis  of  location,  and 
it  having  been  decided  that  when  a  vein  leaves  the 
side  lines  of  its  location,  the  claim  -both  as  to  veins 
and  surface  beyond  that  point  is  void,  it  necessarily 
follows,  where  either  side  line  is  found  at  any  point 
to  be  more  than  the  legal  distance  from  the  center  of 
the  vein,  that  the  location  of  such  excess  in  width 
has  not  been  based  upon  a  vein  lying  within  the  stat- 
utory limits,  and  comes  within  the  same  reasoning 
which  renders  all  that  portion  of  the  location  void  in 
which  no  vein  is  found. — Patterson  v.  Hitchcock,  5 
M.  R.  542.  But  no  such  fact  would  vitiate  any  part 
of  the  claim  after  patent  issued. — Peabody  Co.  v. 
Gold  Hill  Co.  91  F.  657. 


PRESENT  WIDTH  OF  LODE  CLAIMS. 


21 


Excess — How  Corrected. 

The  case  of  A/c£Hi0ott  v.  tfroflr/i,  90  P.  825,  serves 
to  illustrate  the  above  diagram  and  shows  at  the 
same  time  how  the  error  is  to  be  corrected  and  new 
lines  established.  Upon  development  after  location 
the  discovery  vein  of  the  Live  Oak  lode  claim  was 
found  to  run  in  such  direction  that  its  N.  W.  corner 
was  320  feet  from  the  "middle  of  the  vein,"  that  is 
to  say  20  feet  beyond  the  point  at  which  it  could 
legally  be  placed.  The  appellant  Court  reset  this 
corner  by  drawing  it  in  20  feet  toward  the  vein  and 
fixed  the  west  side  line,  by  drawing  a  straight  line 
from  the  new  corner  to  the  point  on  the  original 
west  side  line  where  the  excess  first  began;  allowing 
the  original  west  side  line  to  stand  from  that  point 
to  the  S.  W.  corner  which  was  within  the  300  feet. 
See  diagram,  90  P.  82//. 

The  above  diagram  illustrates  the  preceding  par- 
agraph. The  shaded  ground  shows  an  excess  over  the 
allowed  300  feet  from  the  center  of  the  vein.  A  valid 
hostile  discovery  could  be  made  upon  such  shaded 
ground  or  a  location  made  taking  it  in.  The  plat 
shows  a  claim  of  600  feet  width.  Where  the  full 
legal  width  is  300  feet,  the  excess  would  begin,  of 
course,  at  150  feet  "from  the  center  of  the  vein." 


22  DISCOVERY  AND  LOCATION. 

• 

DISCOVERY   AND   LOCATION   OF  LODES   BE- 
FORE THE  ACTS  NOW  IN  FORCE. 


Mode  of  Location  Not  Strict. 

Prior  to  1866  there  was  no  United  States  law  reg- 
ulating lode  locations.  Nor  did  that  law  state  any 
definite  formula  further  than  to  limit  the  extreme 
width  and  length.  Nor  were  the  requirements  of  the 
State  or  Territorial  Legislatures  usually  specific. 
Either  by  statute  or  by  district  rule  a  discovery  was 
always  required  and  a  notice  at  the  point  of  discov- 
ery, and  in  many  districts  such  a  staking  as  would 
indicate  the  extreme  points  to  which  the  claim  ex- 
tended. In  1866  by  statute  in  Colorado  a  location 
stake  and  a  ten  foot  discovery  shaft  were  required. 
In  other  States  and  Territories  even  these  initial  and 
essential  points  were  left  entirely  to  district  regula- 
tions. 

In  all  cases  the  actual  disclosure  of  the  vein,  and 
not  merely  the  float  or  indication  of  the  vein,  was  re- 
quired, and  the  stake  was  supposed  to  give  the  name 
of  the  lode  and  its  locator,  with  usually  the  date  of 
discovery  and  the  number  of  feet  in  each  direction. 

That  some  act  of  location  was  required,  has 
never  been  disputed.  But  in  the  absence  of  district 
rules,  what  would  amount  to  a  sufficient  location 
can  only  be  defined  as  such  acts  of  appropriation  as 
would  amount  to  a  declaration  that  the  locator  had 
appropriated  the  ground,  and  be  sufficient  notice  to 
other  prospectors  that  he  had  so  appropriated  it. — 
Hess  v.  Winder,  12  M.  R.  211;  30  Cal.  31,9;  English  v. 
Johnson,  12  M.  R.  203;  17  Cal.  101 ;  Attwood  v.  Fri- 
cot,  2  M.  R.  305;  11  Cal.  38;  Gleeson  v.  Martin  White 
Go.  9  M.  R.  429;  13  Nev.  442;  Oonu  v.  Russell,  \> 
M.  R.  630;  3  Mont.  358. 

In  the  case  of  Cons.  Rep.  Co.  v.  Lebanon  Co.  15 
M.  R.  490;  9  Colo.  343,  it  was  ruled  that  the  posting 
of  the  notice  and  the  recording  of  certificate  not  fol- 
lowed by  development  or  representation,  would  not 


DISCOVERY  AND  LOCATION.  23 

hold   the  claim  against  a  subsequent  location.     See 
also  Becker  r.  Pugh,  15  M.  R.  804;  9  Colo.  589. 


DISCOVERY   AND    LOCATION    UNDER   LAWS 
NOW   IN   FORCE. 


Discovery  Required. 

K     -  520,     *     *     *     No  l«M-Mtion  of  a  mining 

claim  shall  lie  made  until  the  discovery  <>f  tin-  vein  or  lode 
within  the  limits  of  the  claim  located.  *  *  *  — Sec.  2, 

A.  C.    M"n   I".   Itfg. 

Staking  and  Record. 

II.    B  24,     The  miners  of  each  mining-district 

111:1  y    in:ik.-    regulations    imi     in    c«>ntlict    with    the   laws   of   the 
1'nited   states.   .-I    with   the  laws  of  the  State  or  Territory 
in    which    the    district     is    situated,    governing    the    location, 
manner    of    recording,    amount    of    work    necessary    to    hold 
i    of    a    mining  claim,    subject     to    the    following    re- 
quirements:    The  i..rati<>n  must   be  distinctly  marked  on  the 
nd  so  that  its  boundaries  can  be  readily  traced.    *    *    * 
-,.A.  C.  May  10,  1872. 

Discovery  Shaft,  Notice  and  Stakes  in  Colorado. 

II  s.  Cola  Bee.  IP'7. — Before  filing  such  location 
certificate  the  discoverer  shall  locate  his  claim  by  : 

If-   Sinking    a    dlscorerj    shaft    upon    the    lode    to 

the  depth  of  .it  Last  ten  feet  from  the  lowest  part  of  the 
rim  of  surh  shaft  at  t  ho  surface,  or  deeper,  If  necessary  to 
show  a  well  defined  < -re\  ; 

-,H<I     P.y   IMSMULT  at    the  point  of  discovery  on  the 
surface  a  plain  sign   or  notice,   containing  the  name  of  the 

lode,  tlie  nan f  the  locator,  and  the  date  of  discovery. 

TJiinl-  P,y  marking  the  surface  boundaries  of  the 
claim.— Feb.  13. 

Corner  Posts,  Center  Posts. 

R.  S.  Colo.  Sec.  4108.— Such  surface  boundaries  shall 
be  marked  by  six  substantial  posts  hewed  or  marked  on  the 
side  or  sides  which  are  in  toward  the  claim,  and  sunk  in 
the  ground,  to-wit  ;  one  at  each  corner  and  one  at  the  cen- 
ter of  each  side  line.  Where  it  is  practically  impossible  on 
account  of  bed  rock  to  sink  such  posts,  they  may  be  placed 
in  a  pile  of  stones,  and  where  in  marking  the  surface 
boundaries  of  a  claim  any  one  or  more  of  such  posts  shall 
fall  by  right  upon  precipitous  ground,  where  the  proper 
placing  of  it  is  impracticable  or  dangerous  to  life  or  limb, 


24  DISCOVERY  AND  LOCATION. 

it  shall  be  legal  and  valid  to  place  any  such  post  at  the 
nearest  practicable  point,  suitably  marked  to  designate  the 
proper  place. — Fcl).  2,  1876. 

Open  Cuts  and  Tunnel  Discoveries. 

R.  S.  Colo.  Sec.  4109. — Any  open  <ut.  crow-cut  or 
tunnel  which  shall  cut  a  lode  at  a  depth  of  ten  feet  below 
the  surface,  shall  hold  such  lode,  the  same  as  if  a  discovery 
shaft  were  sunk  thereon,  or  an  adit  of  at  least  ten  tVi-t  m 
along  the  lode  from  the  point  where  the  lode  may  be  In  any 
manner  discovered,  shall  be  equivalent  to  a  discovery  sh.ift 
— Pel).  IS,  187). 

Time  to  Sink  Discovery. 

K.  S.  Colo.  Bee.  I-11". — The  diso.v.  r,  i-  shall  liav«- 
sixty  days  from  the  time  of  uncovering  or  disclosing  a  lode 
to  sink  a  discovery  shaft  thereon. — Id. 

The  Doctrine  of  Appropriation  would  have  no  ap- 
plication to  mining  and  water  claims  on  the  Pan  fir 
Slope  if  the  lands,  before  the  discovery  of  minerals, 
had  passed  into  the  hands  of  private  owners;  nor 
to  the  government  itself,  if  the  government  had 
chosen  either  to  treat  the  miners  as  trespassers  or 
to  arbitrarily  dispose  of  the  lands  at  public  sale. 
Instead  of  adopting  any  such  policy,  the  United 
States  for  many  years  tacitly,  and  since  1866  by  posi- 
tive enactment,  opened  the  lands  to  the  explorer  and 
occupant;  in  other  words,  the  mineral  lands  were 
offered  to  the  first  appropriator. 

The  Acts  of  Appropriation,  as  to  mineral  lands, 
are  equivalent  to  such  acts  as  would  amount  to  oc- 
cupation in  other  cases;  there  must  be  an  intent  to 
possess  the  claim,  such  acts  of  appropriation  as  are 
sufficient  to  carry  out  this  intention,  and  finally  such 
acts  must  have  such  publicity  by  record  as  to  operate 
as  notice  to  all,  that  the  lands  have  been  actually 
appropriated. 

The  appropriation  of  a  mine,  the  appropriation 
of  water  for  mining  or  irrigating  purposes,  and  the 
occupation  of  homestead  land  are  therefore  in  sub- 
stance the  same,  and  differ  only  so  far  as  the  vari- 
ous subject  matters  differ,  the  criterion  in  each  case 
being  the  intent  of  the  occupant  to  segregate  a  cer- 


DISCOVERY  AND  LOCATION.  25 

tain  portion  of  the  public  domain  to  his  several  use, 
followed  by  acts  manifesting  such  intention  with 
such  publicity  as  is  due  to  the  rights  of  third  parties. 
—Sparroiv  v.  Strong,  2  M.  R.  320;  3  Wall.  97;  Gore  v. 
McBrayer,  1  M.  R.  645;  18  Cal. 

The  Right  of  Appropriation  is  now  regulated  by 
statute  to  a  greater  or  less  extent  in  most  of  the 
States  and  Territories,  so  that  the  appropriator  must 
not  only  occupy  the  ground,  but  must  segregate  his 
(hum  and  otherwise  comply  with  the  law,  which  at- 
tempts to  reduce  to  detail  the  above  general  prin- 
( iples. 

These  statutes  fix  a  time  for  the  process  of  loca- 
tion and  record  and  require  certain  acts  to  be  done 
to  constitute  a  valid  location.  In  all  the  Western 
mining  States  and  Territories,  except  California, 
Utah  and  Alaska,  the  regulations  are  quite  specific. 
They  have  copied  the  earlier  Colorado  Statute  more 
or  less  closely.  In  the  excepted  States  much  more 
is  left  to  district  custom.  It  is  intended  that  a  loca- 
tion made  as  in  this  chapter  advised  would  be  valid 
in  any  State  or  Territory,  except  where  some  specific 
statute  calls  for  additional  requirements:  The  de- 
tails of  location  in  each  State  and  Territory  are  tab- 
ulated on  page  60. 

Where  Location  Begins  and  Ends. 

It  has  been  held  that  the  word  location  does  not 
necessarily  include  discovery.  That  a  stipulation 
that  certain  lodes  were  "located  in  compliance  with 
law"  did  not  preclude  an  attack  on  the  discovery. 
Uinta  Co.  v.  Ajax  Co.  141  F.  563. 

The  Supreme  Court  of  Montana  says  that  the 
acts  which,  taken  together,  amount  to  a  location, 
begin  with  the  discovery  and  terminate  with  the  filing 
for  record  of  the  declaratory  statement.  Hickey  v. 
Anaconda  Co.  81  P.  811. 

These  two  decisions  are  not  in  accord  and  it 
may  admit  of  scholastic  discussion  as  to  whether  the 
act  of  visual  discovery  is  part  of  the  location,  and 


26  DISCOVERY  AND  LOCATION. 

also  whether  the  filing  of  the  record  is  parcel  of  the 
location  or  only  proclamation  of  the  fact  of  location. 

Such  points  become  material  chiefly  in  cases 
where  the  doctrine  of  relation  or  of  conclusive  pre- 
sumptions is  invoked.  In  the  Federal  case  they  held 
that  the  patent  did  not  prevent  attack  on  the  date 
of  discovery  and  in  the  latter  case  that  the  date  of 
filing  for  Record  was  the  date  of  location. 

Discarding  these  technical  distinctions  the  for- 
mal acts  of  appropriation  are:  (1)  Discovery.  (2) 
Location.  (3)  Record. 

Discovery  the  Inception  of  Title. 

The  discovery  of  a  lode  of  itself  gives  title  to 
the  vein  for  such  length  of  time  as  is  allowed  by  law 
for  the  completion  of  the  location  and  record  (Mur- 
ley  v.  Ennis,  12  M.  R.  860;  2  Colo.  300;  Erhardt  v. 
Boaro,  4  M.  R.  432;  113  U.  8.  521)  ;  and  when  the  loca- 
tion and  record  are  made,  if  made  in  due  time,  the 
inception  of  title  relates  back  to  the  date  of  discov- 
ery.— Burke  v.  McDonald,  29  P.  98.  From  this  fact 
a  later  record  may  show  an  older  and  better  title 
than  a  record  made  several  months  earlier. — Patter- 
son v.  Hitchcock,  5  M.  R.  542;  3  Colo.  533.  For  this 
reason  it  is  advisable  for  the  location  certificate  to 
recite  the  date  of  discovery  as  well  as  the  date  of 
location. 

If  the  statute  or  district  rule  does  not  fix  a  spe- 
cific time  for  the  discoverer  to  follow  up  his  discov- 
ery the  common  law  allows  him  a  reasonable  time 
to  do  each  act  required. 

Essentiality  of  Discovery — How  Proved. 

Where  a  location  is  made  without  discovery  the 
land  remains  public  domain  until  there  be  a  discovery. 
Tuolumne  Co.  v.  Maier,  66  P.  863.  The  fact  that  they 
had  no  valid  discoveries  may  be  proved  in  an  action  to 
recover  the  price  of  possessory  claims  sold  to  plain- 
tiff. Whitney  v.  Haskell,  66  Atl.  101: 


DISCOVERY  AND  LOCATION.  27 

The  fact  of  discovery  must  be  proved  by  the 
party  alleging  it  as  the  inception  of  his  possessory 
right.— Sands  v.  Cntiksliank.  N?  .V.  W.  589. 

The  location  notice  is  not  prima  facie  proof  of 
discovery,  but  where  both  claimants  posted  their 
discovery  notice  at  the  same  point  it  is  a  mutual 
admission  that  there  was  a  lode  discovered  there. 
Fox  v.  Myers,  86  P.  798. 

The  Vein  Must  be  Reached. 

The  discovery  is  not  complete  until  the  vein  it- 
self is  disclosed.  The  finding  of  float  or  loose  quartz 
is  not  sufficient.  There  is  a  custom  generally  re- 

'•M!  among  miners,  when  any  person  has  discov- 
ered indications  of  a  lode  and  is  diligently  following 
up  these  indications,  to  allow  thirty  days  in  which 
to  uncover  the  deposit;  but  if  another,  by  a  shorter 
cut.  should  first  actually  reach  the  vein,  it  would 
seem  that  the  first  prospector,  except  as  qualified  by 
the  Boaro  case  cited  below,  could  assert  no  priority; 
and  such  has  been  the  tenor  of  the  decisions. — 
Upton  v.  Larkin,  6  P.  66;  North  N.  Co.  v.  Orient  Co. 
9  M.  R.  529;  1  Fed.  522;  Overman  Co.  v.  Corcoran,  1 
M.  R.  691;  15  Nev.  417.  In  Walsh  v.  Mueller,  40  P. 
the  facts  which  constituted  the  discovery  are 
stated  and  held  such  clear  proof  as  warranted  the 
reversal  of  a  finding  that  there  was  no  discovery. 

The  fact  of  discovery  of  the  vein  may  be  in- 
ferred, where  not  proven  in  specific  terms,  by  the 
use,  by  witnesses,  of  expressions  which  would  be 
meaningless  except  upon  the  assumption  that  they 
were  speaking  of  a  discovered  lode.  Conway  v.  Hart, 
21  M.  R.  20;  62  P.  ',',. 

Prospector's  Rights  Before  Discovery. 

If,  however,  a  prospector  has  discovered  float  or 
other  indications  of  the  immediate  presence  of  the 
vein  and  keeps  diligently  at  work,  such  inchoate  dis- 
covery has  practically  been  held  by  the  National  Su- 
preme Court  in  Erhardt  v.  Boaro,  15  M.  R.  447;  113 
U.  8.  587,  equivalent  to  the  discovery  of  the  vein  in 
place.  If  it  does  not  go  so  far  as  to  decide  that  the 


28  DISCOVERY  AND  LOCATION. 

prospector  could  .at  once  locate  upon  such  indica- 
tions, it  does  decide  that  he  has  not  only  the  right 
to  be  protected  in  his  possession  while  following  up 
such  indications,  but  that  he  will  be  protected  to  the 
extent  of  a  full  claim  when  his  location  is  complete. 

Excluding  the  fact  of  the  intimidation  which  was 
in  proof  in  that  case,  it  is  difficult  to  reconcile  the 
opinion  with  the  Colorado  Statute,  which  requires  a 
well  defined  crevice  to  be  disclosed,  and  with  the  lan- 
guage of  the  R.  S.  Sec.  2320,  which  prohibits  any 
location  until  the  discovery  of  the  vein.  Whatever 
the  effect  of  the  decision  in  giving  precedence  to 
the  prospector  upon  the  floe  as  against  the  actual 
discoverer  of  the  vein  itself,  it  ought  at  least  to  be 
certain  that  no  such  disclosure  of  indications  short 
of  uncovering  the  vein  in  place,  would  hold  as  a  dis- 
covery sufficient  to  stake  and  record  upon  and  leave 
to  the  protection  of  the  law,  as  the  miner  may  do 
when  his  discovery,  location  and  record  upon  the  lode 
in  place  are  once  absolute  and  complete;  but  when 
accompanied  by  his  actual  presence  on  the  ground 
with  notice  posted,  the  question  of  prior  discovery 
in  fact  in  such  case  remains  a  question  for  the  jury. 

A  lode  claimant  before  discovery  has  no  right  to 
protection  except  to  the  extent  of  his  bare  pedis  pos~ 
sessio.  Oemmel  v.  Swain,  72  P.  662. 

The  hope  and  expectation  of  finding  cannot 
avail  to  supplant  the  required  disclosure  in  fact. 
Ambergris  M.  Co.  v.  Day,  85  P.  115.  But  where  the 
lessee  of  an  oil  placer  claim  is  sinking  a  well,  his 
rights  will  be  protected  against  an  attempt  to  claim 
the  ground  by  locating  him  in.  Weed  v.  Snook,  77 
P.  1023. 

The  Discoverer  in  Law  is  not  necessarily  the  orig- 
inal finder,  but  any  one  who,  knowing  of  the  exist- 
ence of  the  mineral,  takes  some  step  toward  an  ap- 
propriation of  the  land  which  contains  it. — Nevada 
Co.  v.  Home  Co.  98  F.  673;  Jupiter  Co.  v.  Bodie  Co. 
4  M.  R.  411;  11  F.  666.  It  is  assumed,  of  course,  in 
such  case  that  the  original  actual  discoverer  failed 
to  perfect  his  initiatory  first  right  by  location.  The 


DISCOVERY  AND  LOCATION.  29 

vein  may  be  disclosed  in  a  pit  sunk  on  it  before  by 
a  stranger. — Hayes  v.  Lavagnino,  53  P.  1029- 

In  Zerres  v.  Vanina,  134  &•  W.  &  is  said:  "A 
relocator  is  not  a  discoverer  of  the  mineral,  but  an 
appropriator  thereof;"  which  expression  though  liter- 
ally true  and  correctly  used  as  applied  to  the  facts 
in  that  case  may  be  misleading  if  not  qualified.  A  re- 
locator  must  disclose  the  lode  in  his  shaft  the  same  as 
the  original  locator,  and  may  do  so  at  a  point  where 
the  original  discoverer  never  supposed  it  to  exist,  or 
by  uncovering  a  new  vein  within  the  located  ground. 
Technically  therefore  the  relocator  is  a  discoverer  as 
much  as  the  first  finder  of  the  lode,  and  in  his  record 
ves  his  "date  of  discovery"  just  the  same. 

A  Location  on  Float  Ore,  the  discovery  opening 
not  showing  the  lode  in  place,  has  been  expressly 
held  to  be  invalid.  Several  tons  of  such  ore  had 
been  extracted,  .but  the  vein  itself  from  which  it 
came  had  not  been  defined. — Waterloo  Co.  v.  Doe, 
56  F.  685. 

On  the  other  hand  an  Idaho  decision  allowed  a 
location  to  stand  good  made  upon  "indications  of 
mineral,"  the  report,  however,  leaving  it  very  indef- 
inite as  to  what  these  indications  were. — Burke  v. 
McDonald,  29  P.  98. 

Discovery  is  a  question  of  fact  for  the  jury. 
Columbia  Co.  v.  Duchess  Co.  79  P.  385. 

Discovery  After  Location. 

If  a  location  be  made  before  discovery,  but  is 
followed  by  a  discovery  in  the  discovery  shaft,  be- 
fore any  adverse  rights  intervene,  such  subsequent 
discovery  cures  the  original  defect  and  the  claim  is 
valid. — McGinnis  v.  Egbert,  15  M.  R.  329;  8  Colo.  41; 
Golden  Terra  Co.  v.  Mahler,  4  M.  R.  390;  Jupiter  Co. 
v.  Bodie  Co.  4  M.  R.  411;  11  F.  666;  Zollars  v.  Evans, 
4  M.  R.  407;  2  McCr.  39;  North  Noonday  Co.  v.  Orient 
Co.  9  M.  R.  529;  1  F.  522;  Erwin  v.  Per  ego,  93  F. 
608;  Nevada  Co.  v.  Home  Co.  98  F.  673;  Brewster  v. 
Shoemaker,  63  P.  309;  Weed  v.  Snook,  77  P.  1023; 


30  DISCOVERY  AND  LOCATION. 

Sharkey  v.  Candiani,  85  P.  219,  and  the  Land  Depart- 
ment has  followed  these  rulings. — 28  L.  D.  526. 

But  where  a  location  and  record  were  made  with 
no  discovery,  a  subsequent  discovery  will  not  relate 
back  and  cut  out  an  intervening  location. — Deals  v. 
Cone,  62  P.  948. 

A  discovery  after  the  adverse  claim  was  filed  is 
not  available  to  the  plaintiff. — Healcy  v.  Rupp,  86  P. 
1015. 

Discovery  and  Discovery  Shaft  Distinguished. 

The  fact  of  discovery  is  a  fact  of  itself,  to  be 
totally  disconnected  from  the  idea  of  discovery  shaft. 
The  discovery  shaft  is  a  part  of  the  process  of  loca- 
tion, subsequent  to  discovery.  If  a  lode,  for  instance, 
be  discovered  in  a  cross-cut  run  to  operate  some  other 
known  vein,  or  if  a  prospect  hole  be  dug  on  the  out- 
crop of  a  lode,  and  no  steps  are  taken  to  stake  and 
record  such  lode,  it  becomes  no  more  the  property  of 
the  owner  of  the  cross-cut,  or  of  the  party  who  dug 
the  hole,  than  if  he  had  never  happened  to  strike  it, 
and  although  he  could  have  followed  up  the  discovery 
by  perfecting  title,  his  neglect  so  to  do  is  equivalent 
to  abandonment  of  the  inchoate  right  given  by  dis- 
covery.— Willeford  v.  Bell,  49  P.  6. 

The  Discovery  Need  Not  Show  Pay  Ore. 

It  is  sufficient  that  it  disclose  such  a  crevice 
as  a  miner  would  be  willing  to  further  open  and  fol- 
low.— McShane  v.  Kenkle,  44  P.  979;  Shreve  v.  Cop- 
per Bell  Co.  28  P.  315;  Muldrick  v.  Brown,  61  P. 
428;  Fox  v.  Myers,  86  P.  793. 

Comparative  Size  or  Value. 

If  there  is  once  found  a  lode  such  as  is  conceded 
to  be  one  upon  which  a  prospector  may  lawfully  lo- 
cate, and  he  has  made  such  a  discovery  as  justifies 
a  location  upon  it,  it  makes  no  difference  what  its 
size  or  value  as  compared  to  the  size  or  value  of  other 
veins  asserting  hostile  title  against  such  location. — 
Book  v.  Justice  Co.  58  F.  125. 


DISCOVERY  AND  LOCATION.  31 

Proof  of  Mineral  Contents. 

The  discovery  must  be  of  a  mineral  bearing  vein 
or  deposit.  The  proof  of  mineral  value  does  not  re- 
quire an  assay,  although  an  assay  if  taken  is  of  mate- 
rial value  as  evidence. — Healey  v.  Rupp,  63  P.  319. 

What  is  quartz  or  mineral  bearing  rock  is  de- 
terminable  by  the  eye  in  most  cases  and  such  ores  as 
galena,  /ink-blende,  copper  pyrites  and  many  others 
necessarily  indicate  mineral  contents.  There  are, 
however,  varieties  of  ochre  and  other  discolored  earth 
and  rock  which  may  or  may  not  carry  any  kind  of 
valuable  mineral,  in  which  instances  an  assay  or 
other  test  in  common  reason  should  be  required. 

Lode  Found  Outside  of  Discovery  Shaft. 

It  has  been  decided  in  some  of  the  States  that 
although  no  lode  was  found  in  the  discovery  shaft, 
its  disclosure  elsewhere  within  the  claim  before  any 
adverse  rights  had  accrued  would  validate  the  claim. 
— Harrington  v.  Chambers,  1  P.  362;  affirmed  111 
U.  8.  350;  North  Noonday  Co.  v.  Orient  Co.  9  M.  R. 
/  /.  622;  Tonopah  Co.  v.  Tonopah  Co.  125  F. 
408.  But  to  the  contrary,  in  Colorado  under  its  stat- 
ute is  the  case  of  Van  Zandt  v.  Argentine  Co.  4  M.  R. 
441;  2  McCr.  159;  Terrible  Co.  v.  Argentine  Co.  89 
F.  583;  affirmed  122  U.  8.  478.  And  if  it  be  true 
that  the  sinking  of  the  discovery  within  patented 
lines  or  the  patenting  of  the  discovery  shaft  by  a 
hostile  claim  invalidates  the  entire  claim;  and  if  the 
discovery  shaft  be,  as  it  is,  the  point  from  which  both 
length  and  width  of  the  claim  are  determined,  the 
point  at  which  the  notice  is  to  be  posted,  and  where 
it  is  required  in  terms  by  the  language  of  the  statute 
to  show  a  well  defined  crevice,  and  the  lode  in  place 
— it  seems  inconsistent  to  hold  that  discovery  else- 
where would  be  of  any  avail  when  there  was  none  in 
the  discovery  shaft. 

This  question  has  been  decided  in  terms  by  the 
Supreme  Court  of  Colorado;  that  a  lode  must  be  dis- 
closed in  the  discovery  shaft. — McMillen  v.  Ferrum 


32  DISCOVERY  AND  LOCATION. 

Co.  74  P.  461;  Beals  v.  Cone,  20  M.  R.  591;  62  P. 
948. 

In  a  Montana  holding,  based  strictly  on  the  con- 
struction of  the  statute  in  that  State,  it  was  ruled 
that  the  discovery  shaft  need  not  necessarily  show 
the  vein,  provided  it  was  disclosed  elsewhere  on  the 
claim. — O'Donnell  v.  Glenn,  19  P.  802. 

By  Relocation  Upon  the  Shaft  showing  the  min- 
eral afterwards  discovered,  this  danger  can  be 
avoided  where  no  hostile  discovery  has  intervened. 
But  a  new  record  based  on  a  new  discovery  is  an 
abandonment  of  the  original  location. — Beals  v.  Cone, 
supra. 

The  Point  at  Which  a  Lode  is  Discovered  is  not 
material.  It  may  be  discovered  at  the  surface 
where  it  outcrops  above  all  surrounding  country 
rock  (Score  v.  Griffin,  80  P.  331) ;  or  under  the  slide 
near  the  surface  at  its  true  apex,  by  shaft,  open  cut 
or  boom  ditch;  or  at  a  greater  depth  by  a  tunnel  cut- 
ting the  vein  horizontally  across  its  dip,  or  by  a 
shaft  striking  it  perpendicularly  upon  the  incline. 

The  Discovery  Shaft  need  not  be  sunk  at  the  point 
where  the  lode  was  first  actually  discovered.  The 
prospector  has  the  right  to  choose  a  more  conven- 
ient spot  from  which  to  base  and  outline  his  claim. 
— Harrington  v.  Chambers,  1  P.  375. 

All  Methods  of  Discovery,  whether  by  shaft,  cut, 
tunnel,  boom-ditch  or  otherwise,  are  recognized  by 
the  statutes  or  district  regulations  everywhere,  the 
only  distinction  being,  where  a  discovery  of  a  cer- 
tain depth  and  showing  certain  things  is  required, 
that  when  discovered  at  the  surface  or  in  the  slide 
there  must  be  a  shaft  at  least  ten  feet  deep,  or 
deeper,  if  necessary  to  show  a  well  defined  crevice; 
while  if  disclosed  in  a  cross-cut  or  tunnel,  the  vein 
must  be  cut  and  a  well  defined  crevice  exposed,  at 
least  ten  feet  below  the  surface. 


DISCOVERY  AND  LOCATION.  33 

Discovery  by  Prospecting  Drill. 

The  of  ;i  lode  or  deposit  by  either  hor- 

izontal or  vertical  drilling  would  doubtless  fulfill  all 
the  conditions  of  a  legal  discovery,  and  would  operate 
to  give  the  party  the  legal  time  allowed  to  complete 
a  discovery  shaft;  but  the  idea  that  a  drill-hole  would 
be  considered  as  the'  equivalent  of  ;i  discovery  shaft 
can  not  be  entertained.  It  would  l>e  a  physical  im- 
possibility for  such  drill  hole  to  show  a  well  defined 
crevice,  and  a  drill  hole  is  neither  a  shaft,  cut  or 
other  opening  such  as  are  enumerated  among  those 
things  which  may  constitute  a  discovery  shaft  or  cut. 
The  discovery  <»r  a  lode  is  a  matter  of  interest  to  the 
prospector  only;  but  if  he  intends  to  appropriate  the 
same  it  must  be  by  such  physical  workings  as  shall 
amount  to  notice  to  third  parties.  A  drill-hole  is 
not  a  notorious,  physical  land  mark,  and  could  not 
be  construed  as  such  notice. 

Discovery  Holds  How  Long  ? 

A  discovery  in  Colorado,  Wyoming,  North  and 
South  Dakota,  Montana  and  Oregon  holds  the  claim 
for  sixty  days  allotted  to  sink  the  discovery  shaft. 
<!nil1  r.  llurncii  /V<//,-  Co.  ',?  .V.  W.  Rep.  !!>». 
Arizona,  New  Mexico  and  Washington  allow  ninety 
days.  Idaho  allows  sixty  days,  but  claim  must  be 
staked  within  ten  days  after  discovery.  In  Alaska 
the  discoverer  has  ninety  days  to  record,  but  district 
rules  may  prescribe  shorter  periods  for  shaft  or  other 
location  work.  Nevada  allows  ninety  days  from  date 
of  posting  location  notice,  but  requires  the  monu- 
ments to  be  placed  within  twenty  days  from  date  of 
posting. 

In  those  States  which  prescribe  no  specific  time, 
what  is  denominated  a  reasonable  time  is  allowed  in 
which  to  complete  the  location.  What  is  a  reasonable 
time  depends  upon  circumstances,  but  it  is  not  to  be 
stretched  indefinitely.  In  Patterson  v.  Hitchcock,  5 
M.  R.  542;  3  Colo.  533,  it  was  ruled  that  ninety  days 
to  sink  a  shaft  was  more  than  a  reasonable  time.  In 


34  DISCOVERY  AND  LOC'ATK  »x. 

Doe  v.  Waterloo  Co.  •','>  /'.  />,  a  prospector  coin 
pleted  his  staking  in  twenty  days,  and  he  was  held 
to  be  in  good  time. 

As  soon  as  a  vein  is  found  by  the  prospector  it  is 
the  custom  to  place  at  the  point  of  discovery  a  notice 
about  as  follows: 

r<>.\T!:\Ti»N   i.«»i»i:. 

Tin-    undcrsi.Lrnrd    Hjiims    sixty    day 8    to    >ink 
slinl't    :iii(l    three   iiK.ntlis    t<.    iimrd   .in    iliis    vein.      .I;inu.-i 

I'.XIS.  JiiMN     S.     V..I    \ 

But  if  it  is  bona  fide  the  intention  of  the  discov- 
erer to  complete  his  location,  the  absence  of  such 
notice  would  not  be  fatal.  This  is  not  the  notice  re- 
quired when  the  location  is  made  (paye  .W).  It 
mere  warning  to  other  prospectors  that  some  one  has 
acquired  a  prior  right  to  locate  on  that  crevice.— 
Erhardt  v.  Bo«r<>.  i:>  M.  I!.  ;7>;  //.;  U. 

A  notice  with   no  discovery   to   justify    is   of   no 
avail.     Qemmel   v.    Strain.    7 .'    /'.    '/>;.';    M<-l*ln>rmm   v. 
Julius.  !>5  N.  W.  J,28.     And  a  notice  not  followed  In- 
stalling does  not  make  a  location. — Malecech  v.  T 
ley,  83  S.  W.  SI. 

In  a  New  Mexico  case  this  language  is  used: 
'The  locator  is  entitled  to  no  appreciable  time  after 
discovery  to  determine  whether  he  desires  to  locate 
and  claim  the  benefit  of  his  discovery.  Discovery 
and  posting  notice  of  claim,  therefore,  must  be  prac- 
tically cotemporaneous." — Deeney  v.  Mineral  Co.  /;? 
P.  735. 

If  by  discovery  is  meant  mere  ocular  perception 
of  an  outcrop  visible  to  all  it  may  be  true,  but  every- 
where else,  where  the  discovery  is  the  result  of  the 
labor  of  the  prospector  he  has  without  doing  any 
further  act  a  reasonable,  or  the  statutory  time,  to 
perfect  the  location. 

*  Rene  wing:  Notice. 

It  seems  useless  to  add  that  if  the  discovery 
shaft  is  not  completed  within  the  legal  time  it  is 

*Cited  and  approved:  Ingemarson  v.  Coffey 
(Colo.),  92  P.  910. 


DISCOVERY  AND  LOCATION.  35 

mere  folly  to  pull  down  the  old  notice  and  put  up 
another  of  a  later  date.  The  sixty  days  or  other  stat- 
utory period,  or  the  reasonable  time,  begin  to  run 
from  the  date  of  discovery,  and  no  self-serving  act 
of  the  prospector  can  enlarge  the  time.  It  is  often 
attempted  to  evade  this  point  and  secure  further 
time  hy  posting  a  new  notice  with  some  other  per- 
son named  as  discoverer. 

Location. 

The  locatiqn  of  a  lode  consists  in  defining  its 
position  and  boundaries,  and  in  doing  such  acts  as 
indicate  and  publish  the  intention  to  occupy  and  hold 
ii  under  the  license  of  the  United  States. 

The  formal  parts  of  location  include: 

1.  'I  lie   location  notice  at  discovery. 

2.  The  discovery  shaft. 

3.  The  boundary  stakes. 

Location  Stake. 

Although  a  very  old  custom,  the  requirement  of 
the  Colorado  Act  of  1866,  repeated  in  the  Act  of 
1874  as  to  a  location  stake,  was  not  always  con- 
sidered imperative,  but  there  are  decisions  under  the 
present  statute  which  enumerate  it  as  one  of  the  con- 
stituent parts  of  a  complete  location. — Strepey  v. 

Colo.  $18;  <'!  •  '  ret  >•< .   \0 

n  M.  n. 

In  fact  this  location  notice  was  in  early  locations 
the  principal  and  often  the  only  specific  act  of  loca- 
tion. It  was  a  universal  custom  before  any  statutes 
existed  purporting  to  regulate  location. 

The  words  of  the  act  require  "a  plain  sign  or 
notice,"  but  there  has  never  been  any  uniformity 
among  prospectors  in  the  details  of  the  notice,  or  in 
the  mode  of  posting  it.  It  may  be  substantially  com- 
plied with  by  writing  on  a  blazed  tree  or  on  a  board 
nailed  at  discovery,  or  by  legible  carving,  or  by  any 
other  rude  but  honest  form  of  notice,  so  that  it  be 
intelligible  and  open  to  observation;  but  the  loose 
practice  of  writing  on  a  chip  or  stick  thrown  into 
the  discovery  hole,  is  an  attempt  to  evade  or  abuse 


36  DISCOVERY  AND  LOCATION. 

the  fair  requirement  of  the  law.  In  Gird  v.  Califor- 
nia Oil  Co.  60  F.  531;  18  M.  R.  Jt5,  the  notice  was 
placed  in  a  tin  can  on  a  mound  of  stones  and  it  was 
ruled  a  proper  posting.  The  following 

r«'i;.M   i.i 

Tin-:    FA  MI  NT:    I. "in:,   discovered   by   Patrick   Corcoran, 
nary  17,   1007.     I  claim   750  feet  easterly  and  750  feet 
westerly  from  dlscovrry.  PATRICK  < 

fully  complies  with  the  law  and  custom,  and  would 
still  be  sufficient  without  signing  at  the  foot  and 
without  stating  the  number  or  direction  of  feet 
claimed. 

This  notice  need  not  call  for  monuments  or  ties 
— that  is  required  of  the  record  only. — Poujade  v. 
Ryan,  33  P.  660;  Brady  v.  Husby,  33  P.  801. 

Such  notice  holds  the  claim  for  a  reasonable  time 
before  setting  the  boundary  stakes  or  other  work. 
—Union  Go.  v.  Leitch,  64  P.  > 

A  notice  giving  name  of  the  lode,  length,  width 
and  direction  of  claim,  dated  and  signed;  held  a  good 
compliance  with  the  statute  of  Wyoming. — Cohm 
Co.  v.  Duchess  Co.  19  P.  385. 

A  Territorial  statute  requiring  location  notice  to 
be  posted  is  supplemental  to  the  Federal  Mining  Act, 
and  a  failure  to  comply  therewith  renders  the  loca- 
tion void;  but  the  mere  fact  that  by  mistake  the 
notice  was  posted  on  the  over-lap  of  a  prior  claim 
does  not  invalidate  the  location. — Upton  v.  Santa 
Rita  Co.  89  P.  275. 

Right  to  Swing  Claim. 

In  Sanders  v.  Noble,  55  P.  1037,  the  Never 
Sweat  discoverers  had  posted  their  notice  claiming 
500  feet  Southerly  and  1,000  feet  Northerly.  During 
the  ninety  days  allowed  for  filing  location  certificate 
other  parties  discovered  the  Yukon.  They  had  read 
the  Never  Sweat  notice  and  purposely  kept  clear  of  its 
ground.  The  Court  held  that  the  law  gave  the  lo- 
cators full  ninety  days  to  choose  where  they  would 
ultimately  fix  their  corners;  that  the  Never  Sweat 
locators  were  not  estopped  by  their  notice  and  could 


DISCOVERY  AND  LOCATION.  37 

swing  their  location  nearly  at  right  angles  and  take 
in  the  Yukon  ground.  The  opinion  is  very  thorough 
and  contains  a  full  review  of  previous  cases,  but  does 
not  meet  the  proposition:  that  while  the  prospector 
may  have  such  full  time  for  such  purposes  he  loses 
it  the  moment  he  by  a  positive  act  limits  the  general 
area  which  his  monuments  when  set  will  include, 
can  not  for  a  moment  believe  that  a  prospector 
T  posting  notice  claiming  750  feet  easterly  and  750 
feet  westerly,  could  dispossess  an  intervening  party 
who  had  sunk  a  hole  800  feet  easterly  from  such  no- 
tioe.  But  such  an  instance  is  scarcely  distinguish- 
able from  the  decision  quoted.  See  Wiltsee  v.  King 
Co.  60  P.  896. 

Discovery  Shaft  Must  be  on  Public  Domain. 

The  discovery  must  be  sunk  upon  unoccupied 
publir  l;ind:  that  is  to  say,  it  must  be  outside  of  the 
lines  of  any  patent  or  even  of  any  valid  location. — 
Upton  v.  Larkin,  6  P.  66;  Little  Pgh.  Co.  v.  Amie 
Co.  11  F.  51;  Armstrong  v.  Lower,  6  Colo.  393;  15 
M.  R.  681;  Golden  T.  Co.  v.  Mahler,  4  M.  R.  390:  4 
P.  C.  L.  J.  405;  Moyle  v.  Bu11<'«<\  ',',  ]>.  <;!> ;  Watson  v. 
Mayberry,  49  P.  /  10  Co.  v.  Maier,  66  P. 

863;  Reynolds  v.  Pascoe,  Id.  1064;  Peoria  Co.  v. 

'  r,  19  P. 

In  the  Larkin-Upton  case,  the  discovery  shaft  was 
partly  on  patented  ground,  but  a  part  of  it  showing 
the  vein  or  a  portion  of  the  vein  was  on  clear  ground 
and  its  validity  was  upheld.— 7  Mont.  449;  J44  U.  8. 
19. 

Plaintiff  in  an  adverse  claim  suit  must  show  that 
his  location  was  on  vacant  public  domain. — McWil- 
liams  v.  Winsloiv.  82  P.  538. 

Location  Must  be  Good,  When  Made. 

"A  location  to  be  effectual  must  be  good  at  the 
time  it  is  made." — Belk  v.  Meagher,  104  U.  8.  285. 
If  made  on  the  ground  of  a  prior  location,  and  there- 
fore initiated  by  trespass,  the  subsequent  abandon- 
ment of  the  prior  claim  does  not  make  the  later 
location  good.  Where  there  were  successive  reloca- 


38  DISCOVERY  AND  LOCATION. 

tions,  one  made  before  the  abandonment  and  the 
other  after,  the  latter  is  the  only  valid  relocation. — 
Brown  v.  Gurney,  201  U.  8.  184,  affirming  G.  v.  B. 
77  P.  .J57. 

There  is  one  case,  Lavagnino  v.  Uhlig,  198  U.  8. 
W,  which  can  not  be  reconciled  with  the  above 
rule,  nor  can  any  satisfactory  distinction  be  made 
between  it  and  the  Gurney  case:  but,  as  the  Gurney 
case  is  the  later  decision,  it  must  be  taken  as  silently 
overruling  the  Uhlig  holding. 

Exceptional  Cases — Town  Site — Placer. 

Assuming  that  all  known  lodes  have  been  ex- 
cepted  from  a  Town  Site  Patent,  a  discovery  shaft 
may  be  sunk  upon  and  within  the  area  of  its  patent. — 
Moyle  v.  Bullene.  '/  /  P.  </.''. 

The  exclusion  of  Known  lodes  from  placer  pat- 
ents is  a  like  instance  and  has  been  ruled  the  same 
way. — Mutchmor  v.  McCarty.  ^:  r 

Patent  Over  Discovery  Shaft. 

And  where  a  party  allows  a  claim  held  by  other 
parties  to  go  to  patent  over  his  discovery  shaft,  "the 
loss  of  the  discovery  is  a  loss  of  the  location." — Gwil- 
Um  v.  DonneUan.  11.1  r.  N.  ',', :  l~>  M.  U.  \8%;  Miller  v. 
Girard,  33  P.  W:  (tirard  v.  Carson.  .'/.'/  P. 

Where  a  senior  claimant  allows  a  location  to  be 
made  over  his  discovery  shaft  and  to  go  to  patent,  his 
claim  becomes  a  void  location  not  only  as  to  such 
patent,  but  as  to  all  persons  and  claims. 

In  an  instance  with  special  equities  where  an  ag- 
ricultural patent  was  issued  covering  that  end  of  a 
lode  claim  on  which  all',  or  nearly  all,  the  work  had 
been  done  and  where  the  clear  end  of  the  claim  could 
be  practically  reached  only  by  work  commenced  on 
the  patented  end,  the  court  distinguished  the  case 
and  held  that  Gwillim  v.  DonneUan  did  not  apply. — 
Richard  v.  Wolfing,  32  P.  971 :  Post,  p.  131. 

Sale  of  Discovery  Shaft. 

But  the  sale  of  that  part  of  the  claim  containing 
the  discovery  shaft  does  not  invalidate  the  title  of 


DISC  -VKRY   AM'   LM»  \\TION.  tt 

that  part  which  the  locator  retains.  Little  Pgh.  Co. 
v.  Amie  Co.  77  /•'.  .17 ;  and  in  this  case  the  grantees 
ha»l  afterwards  gone  to  patent  on  the  ground  contain- 
in^  the  discovery  shaft,  as  parcel  of  another  claim, 
istinction  can  readily  be  drawn  between  this  and 
the  Dour  and  \vt  they  are  so  close 

that  it  may  be-  considered  dangerous  to  convey  that 
portion  of  i lie  lode  containing  the  discovery  without 
proper  coven;.  linst  patenting  it  as  parcel  of 

another  claim. 

Claim  Must  Include  Discovery  Shaft. 

It  is  self-evident  that  the  claim  must  include  the 
discovery  shaft,  and  proof  that  by  change  of  boun- 
daries they  were  made  so  as  to  exclude  the  discovery 
shaft  is  admissible  to  defeat  such  location. — McGin- 
.  K'/iH'rt.  8  Colo.  54;  /.i  M.  If. 

A  location   of  certain   bounds   upon  a  discovery 

shaft  exterior  to  such  bounds,  upon  a  lode  which  on 

would  extend   into  the  lines  staked  off,  is 

a  claim  without  a  discovery  and  is  void. — Michael  v. 

Mills.  ',:>  />.  ;. 

An  underground  discovery  in  another  claim  aid- 
ed by  finding  quartz  on  surface  of  the  claim  in  con- 
troversy was  held  suflM -ient  to  support  the  location 
in  Reiner  r.  NC///-O.  •  .1/7. 

The  Shaft  Must  be  Ten  Feet  Deep,  by  statute  in 
all  the  mining  States  except  Alaska,  California, 
North  Dakota  and  Utah.  In  the  excepted  States  the 
discovery  point  may  show  the  lode  by  a  hole  or  cut 
sunk  or  driven  to  or  on  the  vein;  but  if  the  discovery 
notice  is  posted  on  a  naked  outcrop  no  hole  or  cut  is 
necessary  unless  required  by  district  rule,  or  by  stat- 
ute as  in  North  Dakota,  which  requires  a  shaft,  but 
does  not  fix  the  depth. 

A  State  Statute  requiring  a  specific  depth  of  ten 
feet  is  a  valid  exercise  of  the  right  of  regulation 
allowed  to  the  legislature  under  the  Congressional 
Act.—8i89OH  v.  Sommers,  5;>  P.  82.9;  Beals  v.  Cone, 
.;7  Colo.  \1S;  20  M.  R.  am. 


40  DISCOVERY  AND  LOCATION. 

Depth — How  Measured. 

In  those  States  requiring  specific  depth,  the  lan- 
guage of  the  statute  requires  the  shaft  to  be  at  least 
ten  feet  from  the  lowest  part  of  the  surrounding 
surface.  In  the  instance  of  a  shaft  started  on  a  steep 
slope  there  might  be  two  or  three  feet  of  difference 
btween  its  two  ends  or  sides.  In  the  instance  of  a 
shaft  sunk  not  vertical  but  following  a  vein  with  a 
heavy  pitch  it  is  obvious  that  a  slight  difference 
would  exist  between  a  vertical  measurement  and  a 
measurement  following  the  pitch  of  the  shaft,  the 
latter  measurement  being  the  shorter  (list;m<-««  and 
favoring  the  prospector.  And  although  usually  the 
measurement  is  taken  vertically,  yet  in  such  case 
we  do  not  see  but  that  the  measure  following  the 
dip  would  strictly  conform  to  the  law,  unless,  as  in 
Montana,  the  Statute  mentions  vertical  depth,  specifi- 
cally. 

It  is  obvious  that  a  cut  being  equivalent  to  a 
shaft  and  the  pitch  of  the  vein  varying  to  any  de- 
gree between  true  vertical  and  the  horizontal  it  is 
impossible  to  say  at  what  angle  the  cut  would  be 
so  flat  as  to  be  no  longer  in  strictness  a  shaft.  But  a 
pit  dug  on  a  blanket  vein  reaching  down  ten  feet 
being  a  compliance  with  the  law,  and  no  more  work 
being  required  on  a  blanket  vein  than  on  a  fissure,  the 
pit  or  shaft  following  the  vein  by  measurement  along 
the  vein  would  be  a  compliance  with  the  law  without 
regard  to  its  relation  to  the  vertical. 

Precautions  as  to  Depth. 

After  a  shaft  has  been  sunk  ten  feet,  the  ground 
at  the  collar  may  cave,  or  the  shaft  may  become  so 
filled  with  debris,  or  the  making  of  a  platform  or 
raised  collar  may  make  it  difficult  to  ascertain  the 
exact  line  of  the  original  rim  of  the  shaft,  or  to  ascer- 
tain its  original  bottom.  In  view  of  these  facts  and 
of  the  essential  importance  of  the  shaft  being  full  ten 
feet  deep,  it  is  always  advisable  to  sink 'it  two  or 
three  feet  deeper  and  remove  all  ground  for  cavil  or 
contention. 


DISCOVERY  AND  LOCATION.  41 

Subsequent  Deepening  of  Shaft. 

Where  the  discovery  shaft  has  not  reached  the 
legal  depth  at  time  of  record,  but  has  been  completed 
to  that  depth  afterwards  and  before  any  adverse 
rights  have  intervened,  such  discovery  shaft  is  valid. 
This  is  a  matter  of  course  on  the  general  ruling  as  to 
performance  of  the  various  acts  of  location  being  suf- 
ficient in  all  instances  where  complete  before  third 
parties  assert  rights,  though  not  completed  within 
the  statutory  period.-  >is  v.  Egbert,  8  Colo. 

J/;  15  M.  R.  .; 

Discovery  Shaft  Must  Show  Well  Defined  Crevice, 
besides  reaching  a  certain  depth. — Cheesman  v. 
Shreeve,  40  /•'.  HT7;  n  M.  R.  260.  "Crevice"  means 
a  "mineral  bearing  vein." — Beals  r.  Conr.  tit  r.  .958. 
If  a  crevice  does  not  show  in  ten  feet,  the  shaft 
must  go  deeper;  if  it  appear  sooner,  the  ten  feet  must 
still  be  completed.  The  crevice  shows  the  lode  dis- 
covered, the  depth  shows  the  lode  appropriated.  In 
the  instance  of  a  thin  flat  deposit  a  ten-foot  shaft 
niiitfit  pass  entirely  through  the  vein,  but  it  would 
still  show  the  crevice  in  its  sides  and  ends. 

It  Need  Not  Contain  Ore  or  Mineral,  but  it  must 
show  mineral  bearing  rock— that  is  the  gangue  or 
crevice  material  of  the  vein — Copper  Globe  v.  All- 
mann,  64  P.  10*20 — and  it  is  error  to  omit  this,  as  one 
of  the  essential  elements  of  a  discovery  shaft  in  an 
instruction  purporting  to  define  such  elements. — 
Bryan  v.  McCaig,  10  Colo.  309.  It  need  not  show 
pay  ore. — Muldrick  v.  Brown,  61  P.  428. 

Discovery  Shaft  Need  Not  Show  Wall. 

It  has  been  decided  in  Montana  (Foote  v.  Na- 
tional Co.  2  Mont.  402;  9  M.  R.  605)  that  at  least 
one  wall  of  the  lode  must  be  disclosed  before  the 
vein  can  be  considered  as  discovered.  But  this  de- 
cision makes  the  discovery  dependent  upon  a  single 
incident,  which  is  not  by  any  means  the  only  proof 
of  the  existence  of  a  vein.  This  case,  as  well  as 
O'Donnell  v.  Glenn,  19  P.  302,  was  based  on  a  re- 


42  DISCOVERY  AND  LOCATION. 

quirement  of  the  Montana  Statute  to  such  effect 
(since  repealed),  and  not  upon  reason  or  the  nature 
of  the  subject-matter,  and  has  therefore  no  perti- 
nency to  discoveries  made  under  the  regulations  of 
an  entirely  different  Statute,  or  in  territory  where 
there  is  no  statutory  regulation  of  the  subject. — 
Fleming  v.  Daly,  ">')  P.  #J7.  There  are  certain 
classes  of  deposits  which  'are  doubtless  lodes  or 
veins  within  the  intent  of  the  Act  of  Congress,  which 
show  no  well  defined  walls  after  thorough  dev« 
ment,  much  less  within  that  amount  of  working  which 
is  required  as  the  basis  of  a  record. 

Shaft  Through  Slide  or  Country. 

Nor  does  it  make  any  difference  that  the  shaft 
is  started  in  slide  or  upon  a  stratum  of  country  rock, 
if  it  pierce  through  the  slide  or  country  and  find  a 
crevice  at  a  depth  of  ten  feet  or  more.  Such  a  shaft 
fulfills  all  the  statutory  conditions.  But  it  must  reach 
the  lode  in  place;  it  is  not  enough  that  it  strike 
a  mass  of  ore  mixed  with  broken  slid.-  and  country. 
—Van  Zandt  v.  Argentine  Co.  2  McCr.  !'>'.>:  ',  M.  R. 
',<il ;  Waterloo  Co.  v.  Doc,  56  F.  > 

Discovery  in  Broken  Ground. 

It  is  a  common  incident  to  find  the  lode  at  sur- 
face with  its  sides  and  body  more  or  less  shattered, 
or  perhaps  with  the  entire  top  of  the  vein  broken 
over  with  the  adjacent  country.  Such  a  lode  is  never- 
theless in  place.  The  shattering  and  breaking  over 
are  only  mechanical  accidents  and  no  more  destroy 
the  position  of  the  vein  as  a  thing  in  place  than  a 
fault  breaks  the  legal  continuity  of  a  vein  followed 
on  its  strike. — Jones  v.  Prospect  Co.  .?/  P.  t;  't  ?. 

Separate  Discovery  for  Each  Claim. 

The  attempt  to  locate  two  full  claims  upon  one 
discovery  shaft  is  a  palpable  fraud.— JG  L.  D.  1;  Me- 
Kinstry  v.  Clark.  ',  Mont.  310;  Reynolds  v.  Pascoe. 
66  P.  106.'}.  It  is  sometimes  alleged  that  two  lodes 
cross  in  the  discovery  shaft,  but  no  ten-foot  shaft 


DISCOVER?   AND  LOCATION.  43 

•  an  prove  such  fact  if  such  a  coincidence  ever  occurs. 
nor  would  it  alter  the  law  of  the  case  if  it  did  occur. 

Open  Cut,  Adit  and  Tunnel  Discoveries. 

All  the  mining  States  which  legislate  specifically 
on  the  subject  practically  follow  the  Colorado  Statute 
providing  that  discovery  by  means  of  an  open  cut, 
adit,  cross-cut  or  tunnel  shall  be  equivalent  to  a 
shaft.  When-  ihe  -discovery  is  by  cross-cut  tunnel 
or  open  cut.  it  must  show  the  lode  at  a  depth  of  ten 
feet  below  the  surface;  that  is  to  say,  the  breast  of 
the  cut  or  tunnel  must  be  of  that  depth  at  its  bottom 
to  be  the  equivalent  of  a  ten-foot  discovery  shaft ; 
but  where  discovery  is  by  an  adit,  the  Colorado  Su- 
preme Court  have  ruled  in  two  cases  that  it  need  not 
be  ten  feet  deep,  nor  any  specific  depth,  at  the  breast, 
but  that  the  adit  must  be  ten  feet  in  length  along 
the  vein.— (fray  v.  Tr/<M/.  6  Polo,  .'>;  Electro  Co. 

V.   \'<i  .   !>   Colo. 

In  the  latter  case  they  also  held  that  an  adit  need 
not  enter  cover  to  be  an  adit.  The  effect  of  the  latter 
decision  is  to  confuse  all  the  distinctions  between  an 
adit  and  an  open  cut,  so  that  if  the  hole  or  stripping 

loses  ten  feet  in  length  of  the  vein,  it  may  be 
styled  an  adit,  although  in  fact  an  open  cut.  It  is  not 
safe  to  rely  on  this  construction,  and  no  prospector 
should  consider  his  discovery  complete  until  he  has 
ten  feet  in  depth  at  the  breast  of  his  cut,  or  a  covered 
adit  at  least  ten  feet  in  along  the  vein. 

The  words  cross-cut  and  tunnel  are  identical 
terms,  except  that  the  former  is  usually  applied  to 
short  workings  and  the  latter  to  those  of  greater 
length. 

In  States  which  have  no  such  statute  the  law  is 
the  same  upon  general  principles.  It  can  make  no 
difference  to  the  government  nor  to  the  rights  of 
other  prospectors  whether  the  discovery  be  by  verti- 
cal or  horizontal  cutting.  Either  mode  complies  with 
both  the  letter  and  the  spirit  of  the  law. 


44  DISCOVERY  AND  LOCATION. 

Secret  Underground  Discovery. 

The  only  class  of  discoveries  which  would  sug- 
gest any  difficulty  is  where,  by  extending  the  works 
of  an  old  claim,  the  drift  or  an  underground  cross- 
cut or  other  working,  passes  beyond  the  claim  and 
discloses  either  a  new  vein,  or  the  extension. of  the 
old  vein  into  clear  ground.  We  can  not  see  any  ob- 
jection to  locating  such  claim  upon  the  discovery  so 
made  below,  the  notice  being  placed  on  surface  at 
the  proper  point  above  the  underground  discovery 
and  referring  to  such  point  of  discovery. 

In  Little  Gunnell  Co.  v.  Kimber,  1  M.  R.  536,  a 
secret  underground  working  from  an  old  claim  was 
not  allowed  to  hold  as  a  valid  basis  for  re-location 
of  an  adjoining  claim,  but  that  decision  was  upon 
the  letter  of  the  Colorado  Statute  concerning  re- 
locations which  in  terms  requires  a  shaft  to  be  sunk 
or  other  new  opening  to  be  made,  nor  had  such  secret 
discovery  been  followed  by  proper  surface  notice. 

In  Butte  Co.  v.  Barker,  89  P.  302,  defendant  had 
run  a  cross-cut  102  feet  long  at  132  feet  depth  start- 
ing from  a  shaft  on  a  patented  claim  owned  by  a 
third  party,  the  cross-cut  extending  into  new  ground 
which  new  ground  defendant  had  staked  and  marked 
on  the  surface  at  a  point  above  the  discovery.  The 
location  was  held  void  under  the  Montana  Statute, 
but  the  reasoning  supporting  the  decision  is  by  no 
means  persuasive.  If  such  cross-cut  were  run  by 
license  of  the  patentee  we  cannot  see  why  it  would 
not  make  a  good  discovery. 

Notice  and  Staking  Upon  Cross-Cut  Discoveries. 

In  the  case  of  cross-cuts  or  tunnels  not  recorded 
under  the  Act  of  Congress,  the  point  on  surface 
above  the  discovery  intended  as  the  center  line  of  the 
claim  is  the  point  at  which  the  location  notice  is 
posted,  and  the  stakes  are  placed  to  embrace  an  area 
in  which  this  notice  stands  at  a  point  on  such  center 
line.  The  discovery  in  the  cross-cut  will  of  course 
be  on  the  same  line  carried  down  vertically  unless  an 
allowance  is  made  for  the  dip.  With  the  exception 


DISCOVERY  AND  LOCATION.  45 

of  the  point  of  placing  notice,  no  distinction  exists 
in  the  process  of  locating  and  recording  between  these 
cases  and  those  of  surface  discoveries. 

Where  the  discoverer  staked  the  claim  on  the 
projection  of  the  dip  found  in  his  cross-cut  (not  a 
statutory  tunnel)  to  surface,  the  location  was  held 
good. — Brewster  v.  Shoemaker,  68  P.  ,W. 

Discovery  in  Statutory  Tunnel. 

Where  a  lode  is  cut  in  a  tunnel  located  and  re- 
corded so  as  to  claim  the  rights  of  a  prospecting 
tunnel  under  the  Act  of  Congress  (Sec.  2323)  we 
advise  where  practical  a  posting,  staking  and  record- 
ing of  each  lode  as  it  is  cut,  exactly  as  in  the  case 
of  discovery  in  an  unrecorded  cross-cut.  But  it  has 
been  held  that  such  discovery  in  a  located  tunnel  is 
good  and  will  hold  without  any  staking  on  the  sur- 
face against  a  subsequent  surface  discovery. — Ellet  v. 
Campbell,  18  Colo.  510.  In  the  case  referred  to  a 
notice  had  been  posted  at  the  mouth  of  the  tunnel 
and  a  record  had  been  made  reciting  the  discovery 
in  the  tunnel  and  claiming  the  proper  length  and 
width,  but  not  giving  surface  boundaries.  This  case 
was  affirmed  in  the  Federal  Supreme  Court,  so  that 
the  question  has  now  received  final  judicial  construc- 
tion. The  Court,  however,  concede  that  it  may  be 
true,  as  suggested  in  previous  Editions  of  the  Mining 
Rights,  that  before  a  patent  can  be  secured  to  the 
lode  there  must  be  a  surface  location. — Campbell  v. 
Ellet,  161  V.  8.  116. 

Staking  Boundaries. 

That  the  staking  of  the  surface  boundaries  of 
the  claim  has  been  required  upon  all  surface  locations 
made  since  May  10,  1872,  has  been  repeatedly  decided. 
—Gelcich  v.  Moriarty,  53  Cal.  217;  9  M.  R.  498;  Haus- 
n-irth  v.  Butcher,  4  Mont.  299;  Oohres  v.  III.  Co.  61 
P.  666;  Deeney  v.  Mineral  Co.  Id.  124.  These  de- 
cisions are  not  made  upon  local  statutes,  but  as  the 
construction  of  R.  S.  Sec.  2324;  nor  can  we  see  how 
any  other  construction  can  be  contended  for.  It 
follows,  therefore,  that  since  May  10,  1872,  surface 


46  DISCOVERY  AND  LOCATION. 

staking  along  the  bounds  of  the  claim  has  been  re- 
quired in  all  cases,  without  regard  to  State,  Terri- 
torial or  District  legislation  requiring  such  staking 
Such  legislation,  when  it  existed,  has  been  to  din •< -t 
the  details  of  the  staking,  but  a  sufficient  staking 
has  been  required  under  the  Act  of  Congress  whether 
the  local  rule  has  been  silent  or  outspoken  on  this 
point.  The  Martin  White  case,  below  quoted,  is  to 
the  same  effect  and  gives  a  full  review  of  the  different 
modes  of  location  on.  the  Pacific  Slope. 

It  may  be  true  in  instances,  that  hardship  results 
under  this  provision;  but  it  is  better  for  a  party  to 
lose  a  portion  of  his  vein  by  its  departure  from  its 
staked  lines,  than  that  he  be  allowed  to  leave  his  vein 
and  its  course  undetermined  until  a  rich  discovery 
in  the  vicinity  suggests  the  time  arrived  to  "prove 
up"  and  take  his  neighbor's  lode.  This  is  not  a 
forced  illustration — it  is  the  very  evil  which  tho  law 
is  intended  to  prevent. — Gleason  v.  Martin  White  Co. 
13  Nev.  442;  9  M.  if.  ','-•>:  0on«  v.  Russell,  .;  M 
858;  12  M.  R.  630:  (///;,///  Co.  v.  Drake,  8  Colo. 
Sweet  v.  Webber,  1  Coin.  ',',.:. 

Posting  the  discovery  notice  is  not  the  equivalent 
of  marking  the  surface  boundaries. — Doe  v.  Watrrlnn 
Co.  10  F.  .',~>>i. 

Overlap  on  Prior  Claims. 

The  setting  of  stakes  on  prior  locations  or  pat- 
ents has  been  held  valid.  Such  surveys  are  sustained 
with  the  reservation  that  such  technical  trespas 
accomplished  without  breach  of  the  peace. — Del 
Monte  Co.  v.  Last  Chance  Co.  Ill  U.  S.  55;  Hunker 
Hill  Co.  v.  Empire  State  Co.  I'M  /  538;  Davis  v. 
Shepherd.  7.'  P.  57;  30  L.  D.  ','<>:  .11  Id.  ill. 

But  the  overlap  belongs,  of  course,  to  the  prior 
claim,  and  doing  the  location  work  upon  a  prior  sub- 
sisting claim  which  has  kept  up  its  annual  labor 
initiates  no  title  at  all  in  the  new  location. — Ander- 
son v.  Caughey,  84  P.  221;  Hoban  v.  Boyer,  85  P.  831. 

Where  by  mistake  the  location  notice  was  posted 
on  the  overlap  it  was  held  that  this  did  not  avoid 
the  location. — Upton  v.  Santa  Rita  M.  Co.  89  P.  875. 


I  .IS»'t  >Vi:i;Y   AM  •   L(  H'ATloN.  -IT 

Fractional  Claims. 

Where  the  surrounding  ground  has  been  taken  up 

hat  only  a  fraction  remains  to  be  located,  perhaps 
three-cornered  or  otherwise  irregular  in  shape,  while 
a  location  conforming  itself  to  the  lines  of  the  vacant 
area  would  be  good  for  the  ground  covered  and  for 
everything  t-i  y  its  vertical  planes  (Cnum 

Point   Co.    r.  >.    it   is   advisable   to 

take    up    such    vacant    aiva    as    a   parallelogram    with 

Rllel  c-nd  lines. so  as  to  secure  extralateral  rights 

h  would  otherwise  be  lost.     The  fact  that  .some 

or  all  the  corners  in  such  case  would   he  on   foreign 

ground    would    nor    :nvalidate. — M<-Kllii/ntt    r.    K  rogh. 

The  locator  Owns  Only  What  His  Lines  Enclose, 
although  not  chargeable  with  fault  in  makiim  them. 
It  is  better  for  him  to  lose  part  of  the  lode  than  to 
make  title  dependent  on  the  result  of  developments 
made  after  lines  have  been  chosen. — Iron  N//rrr  Co. 
v.  Elgin  Co.  118  U.  8.  196;  15  M.  /,'.  <;//. 

Three  Months  to  Complete  Staking  is  the  time  al- 
lowed by  implication  from  the  Colorado  Statute. 
The  discoverer  has  sixty  days  to  complete  his  dis- 

ry  shaft  and  three  months  to  record.  If  his 
staking  is  completed  at  any  time  within  three 
months,  that  is.  within  the  period  allowed  between 
the  date  of  discovery  and  when  the  record  must  be 
made,  it  is  in  apt  time.  He  is  allowed  less  time  to 
sink  his  discovery  than  to  set  his  stakes,  because  he 
may  know,  as  soon  as  his  vein  is  disclosed,  where  to 
sink;  but  he  can  not  so  readily  know  the  course  of 
the  vein,  and  consequently  needs  time  for  this  part 
of  the  location,  inasmuch  as,  his  stakes  once  set,  he 
covers  no  more  of  his  vein  than  lies  within  them. — 
Krhardt  v.  Boaro,  113  U.  8.  527;  15  M.  R.  Jflt. 

If  the  setting  of  his  stakes  is  delayed  be- 
yond the  period  of  three  months,  the  location  is  not 
invalidated  where  no  adverse  rights  have  intervened. 
— McGinnis  v.  Egbert,  8  Colo.  Jtl ;  15  M.  R.  3.W  :  Crown 
Point  Co.  v.  Crismon,-65  P.  87. 


48  DISCOVERY  AND  LOCATION. 

When  the  time  to  complete  staking  is  not  fixed 
by  statute  or  district  rule,  a  reasonable  time  is  al- 
lowed. Twenty  days  has  been  held  to  be  a  reasonable 
time.— Doe  v.  Waterloo  Co.  10  F.  456. 

All  Statutes  Limiting  Time  to  perfect  location 
and  record  are  directory  where  there  is  but  a  single 
claimant,  or  but  one  set  of  claimants,  and  delay  be- 
comes material  only  where  the  rights  of  third  par 
ties  have  intervened. — Healey  v.  Rupp,  86  P.  J<)i~; 
Columbia  Co.  v.  Duchess  Co.  19  P.  385. 

The  Diagram  of  a  Lode  Correctly  Located,  under 
the  present  Colorado  law  (1874-1908),  will  show  sub 
stantially  as  follows: 

Post  Post  Post 


Discovery  Shaft  ••  Location  State 


Post  Post  Po3t 

ELJEH  LOCATION. 

1st.  Discovery  Shaft  at  least  ten  feet  deep  from 
the  lowest  part  of  the  rim  at  the  surface,  and  show- 
ing a  well-defined  crevice. 

2d.  Location  Stake;  a  plain  sign  or  notice  con- 
taining the  name  of  the  lode,  the  name  of  the  lo- 
cator, and  the  date  of  discovery. 

3d.  Center  Stakes;  two  substantial  side  posts 
sunk  in  the  ground  and  hewed  or  .marked  on  the  side 
which  is  in  toward  the  claim.  These  side  posts  must 
be  sunk  in  the  center  of  each  side  line;  that  is,  in  a 
1,500  foot  claim,  750  feet  from  each  end  line. 

4th.  Corner  Stakes;  four  substantial  posts,  one 
at  each  corner  of  the  claim,  sunk  in  the  ground  and 
hewed  or  marked  on  the  two  sides  which  are  in  to- 
ward the  claim. 


DISCOVERY  AND  LOCATION.  49 

5th.     Extra  Angles. 

It  is  the  invariable  custom  where  there  are  angles 
in  the  side  line,  to  place  a  stake,  hewed  on  the  side 
in  toward  the  claim,  at  each  angle. 

For  number,  position  and  marking  of  stakes  in 
the  several  States,  see  STATUTORY  Ki  QI  11:1  MI  \  re,  page 
60. 

Must  Cover  Apex. 

The  stakes  of  the  location  must  include  the  . 
of  the  vein,  and  in  so  far  as  they  fail  so  to  do  the 
claim  is  void  or  defective  to  that  extent.  That  is  to 
say:  the  theory  of  the  Statute  Is  that  a  normal  loca- 
tion will  cover  the  apex  of  a  vein  and  have  the  right 
to  follow  the  vein  on  the  dip.  If  the  location  fail  to 
cover  the  apex  and  the  lode  dips  away  from  the  claim, 
so  much  of  the  vein  is  clearly  lost;  if  after  losing 
the  apex  the  location  is  laid  so  as  to  cover  the  vein 
on  its  pitch  underneath  the  side  lines  as  it  dips  back 
into  or  under  the  side  lines,  it  is  still  lost  to  the 
locator  and  is  held  to  belong  to  such  outside  claim  as 
may  cover  the  apex  beyond  the  point  of  departure. 
See  page 

Locating  Without  Aid  of  Surveyor. 

In  locating  any  class  of  claim,  a  survey  is  always 
advisable. 

If  the  prospector,  however,  can  not  procure  a  pro- 
fessional surveyor  (and  it  is  often  impracticable),  a 
reasonable  degree  of  care  will  suffice  to  locate  his 
boundaries  with  certainty  sufficient  to  make  the  sub- 
sequent record  valid. 

The  record  is  merely  a  description  of  the  claim  as 
staked  on  the  ground;  if  not  properly  staked  the 
record  does  not  make  a  good  location,  but  if  the  loca- 
tion has  been  properly  made,  the  record  can  readily 
be  made  to  describe  it  fully,  whether  such  location 
has  been  made  by  a  surveyor  or  otherwise. 

The  discovery  shaft  being  taken  as  the  center 
of  the  claim  and  the  initial  point  of  location,  a  tape 


50  DISCOVERY  AND  LOCATION. 

measurement  from  its  center  150*  feet  at  right  angles 
to  the  lotfe,  reaches  to  the  point  where  a  center  stake 
must  be  set;  return  to  discovery  shaft  and  continue 
the  same  line  on  the  other  side  the  same  din>< -tion 
and  set  the  second  center  or  side  stake;  at  right  an- 
gles to  this  line  and  across  the  center  of  discovery 
shaft  run  a  line  750  feet  each  way  along  the  supposed 
course  of  the  lode.  This  gives  the  center  line  length- 
wise of  the  claim,  and  from  each  end  of  this  center 
line  measure  150  feet  on  each  side  for  the  end  lines 
on  the  same  course  as  th<»  ////••  hrhrmi  the  center 
stakes,  which  will  give  the  four  points  at  which  to 
set  the  corner  stakes,  and  will  also  make  the  end 
lines  parallel  as  required  by  law. 

Measuring  the  length  of  the  claim  almm  its  cen- 
ter, with  an  offset  of  150  feet  at  right  anulcs  in  e 
direction  at  discovery  shaft  and  at  each  <'iid,  brings 
the  same  result  as  if  both  the  side  lines  as  well  as 
the  end  lines  were  measured. 

Diagram  of  Lines  to  be  Run. 

The  dotted  lines  on  the  following  diagram 
the  four  lines  to  be  measured  on  a  prospector's  sur- 
vey, and  the  six  points  at  which  stakes  are  to  be  set: 

Corner  Center  Stake  Corner 


Corner  Center  Stake  Corner 

Staking  and  Marks  on  Stakes. 

At  each  of  the  four  real  corners  of  the  claim, 
at  the  center  of  each  side  line  and  at  each  extra 
angle  made  in  the  claim,  set  a  substantial  stake, 
blaze  it  and  mark  the  blazed  part  with  its  proper 

"Throe  hundred  feet  in  all  States  and  Territories  ex- 
cept Colorado  and  North  Dakota:  1~»o  feet  in  North  Dakota; 
7.".  tVet  in  Clear  Creek.  (Jilpin.  Konlder.  and  Summit  Coun- 
ties, Colorado,  and  l."»o  feet  in  all  other  counties.  This  •"•"". 
1.~»o  or  7.~i  feet  is.  «»f  course,  «»ne  half  the  width  of  a  600, 
aoo  or  150  foot  wide  claim. 


DISCOVERY  AND  LOCATION.  :.I 

number  and  the  name  of  the  lode.  In  addition  to  the 
number  write  'North  center  side  stake,"  "South  cen- 
ter side  stake,"  "N.  E.  Cor.,"  etc.,  as  the  case  may  be, 
and  put  the  name  of  the  lode  on  each  stake. 

The  Statute  of  Colorado  requires  each  stake  to 
be  hewed  or  marked  on  the  side  or  sides  in  toward 
the  claim.  This  would  be  satisfied  by  blazing  alone, 
but  it  is  customary  to  shave  the  ///  sidt»  (which  in- 
dicates the  relation  of  the  stake  to  the  claim)  and 
mark  with  pencil  th.-  name  of  the  lode,  number  of 
:ier,  etc.,  as  above  directed. 

Marking  three  out  of  four  corners  was  held  sui 
ficient  in  a  Utah  case. — Warnock  v.  DeWitt.    ',<>    r 
K»'vi«-w  of  citations  on  the  point  of  sufficient 
staking. — Howeth  v.  N////oif/er,  45  P.  8|1, 

Where  not  required  by  Statute  it  is  not  essential 
to  put  the  name  of  the  claim  on  the  boundary  stakes. 
—Smith  v.  Newell,  86  F. 

Numbering  the  Corners. 

Any  corner  may  be  called  No.  1;  call  the  other 
corner  on  the  same  end  line  No.  2,  and  proceed  thus 
continuously  around  the  claim,  setting  an  additional 
corner  post  at  each  angle  of  the  claim.  Except  in  of- 
ficial surveys  there  is  no  uniform  rule  as  to  which 
corner  is  numbered  one.  L.  O.  Keg.  138. 

Position  of  Center  Stakes. 

In  the  case  of  the  Hardin  Lode,  the  claim  was 
surveyed  GOO  feet  in  one  direction  and  900  feet  in  the 
opposite  direction  from  center  of  discovery.  The  cen- 
ter stakes  were  placed  opposite  discovery,  which 
left  them  each  150  feet  from  their  proper  places. 
The  Supreme  Court  held  that  they  could  not  be  con- 
sidered as  substantially  in  the  center;  but  on  the 
other  hand,  they  held  that  if  the  corner  posts  were 
properly  on  the  ground,  the  absence  of  center  stakes 
did  not  invalidate  the  location. — Pollard  v.  Shively, 
5  Colo.  309;  2  M.  R.  229. 


52  DISCOVERY  AND  LOCATION. 

Tying  the  Claim. 

In  addition  to  staking  the  boundaries  it  is  essen- 
tial to  have  sufficient  ties  by  which  to  identify  the 
claim  in  the  location  certificate.  The  use  of  tne 
bearings  to  mountain  peaks  used  by  surveyors  with 
instruments  is  impracticable  in  this  kind  of  survey 
— take  instead  of  such  monuments,  marks  carved  on 
prominent  boulders  or  prominent  blazed  trees,  neigh- 
boring shafts  or  shaft-houses.  Anything  which  is  ;i 
"natural  object"  or  "permanent  monument"  (ami 
reasonably  substantial  and  prominent)  is  sufficient* 
to  identify  the  claim.  From  the  center  of  the  dis- 
covery and  from  at  least  one  of  the  corner  p<> 
take  careful  measurements  of  the  exact  distance  to 
such  monuments  (the  most  prominent  possible  un- 
der the  circumstances)  as  have  been  selected  to  use 
in  the  location  certificate  to  tie,  describe  or  identify 
the  claim. 

No  specific  number  of  ties  are  required,  but  at 
least  two  different  monuments  should  be  selected  for 
such  purpose. 

What  Are  Sufficient  Ties. 

A  tree  blazed  or  otherwise  referred  to  by  some 
peculiarity  as  in  Qnimby  v.  Boyd,  S  Colo.  194,  "a 
double  spruce  tree,"  has  been  declared  a  sufficient 
monument.  In  certain  places  trees  might  be  the 
only  objects  available,  and  have  been  considered  good 
boundary  monuments  or  witnesses  from  time  im- 
memorial. A  neighboring  shaft  or  a  prominent  post 
firmly  fixed  in  the  ground  is  a  good  monument. — 
Jupiter  Co.  v.  Bodie  Co.  11  F.  666;  4  M.  R.  412. 
Mountain  peaks  are  good  calls. — Craig  v.  Thompson. 
10  Colo.  517. 

A  tie  to  a  corner  of  an  unpatented  claim  is  pre- 
sumptively a  good  tie. — Londonderry  Co.  v.  Unitrij 
Co.  88  P.  455. 

In  Vogel  v.  Warsing,  146  F.  949,  a  call  for  a 
mountain  by  name,  with  course  a  mile  distant,  was 
held  a  sufficient  tie. 


DISCOVERY  AND  LOCATION.  53 

Calling  for  Adjoining  or  Neighboring  Claims. 

The  earlier  decisions  were  to  the  effect  that  a 
•  all  for  another  mine  or  claim  was  not  a  call  for  a 
I'tTinanent  monument,  and  that  a  location  certificate 
having  such  a  call  and  no  other,  or  no  other  suf- 

iiily  sp» -i-iiir.  was  not  a  compliance  with  K.  S. 
Sec.  2324. — Baxter  Co.  v.  Patterson,  S  P.  7/7:  Drum- 
mond  v.  Long,  9  Colo.  5S8;  15  M.  R.  510;  Gilpin  Co. 
v.  Drake,  8  Colo.-  586.  As  late  as  1896  an  extreme 
ruling  to  the  same  effect  was  made  in  an  Idaho 
case,  Brown  v.  Levan,  46  P.  661;  overruled  in  1902 
by  Morrison  v.  Regan,  67  P.  955.  In  the  location 
certificate  in  the  Levan  Case  the  first  call  was  "about 
one-half  mile  from  the  Hurt  mines,  the  direction 
being  Southwest."  That  call  of  itself  was  indefi- 
nite enough,  but  the  paper  also  called  for  three  ad- 
joiners.  The  Statute  of  Idaho  (at  that  time)  re- 
quired adjoining  claims  to  be  named.  The  Court 
held  that  such  call  for  adjoiners  did  not  aid  the  tie 
to  the  Hurt  group  of  mines.  If  the  call  for  the  ad- 
joiners  of  itself  made  a  good  description  we  can  not 
see  why  such  call  should  be  rejected  as  not  aiding 
the  defective  tie  to  the  Hurt  mines,  from  the  mere 
fact  that  to  call  for  adjoiners  was  a  statutory  require- 
ment of  the  location  certificate. 

All  the  later  cases  hold  that  a  call  for  even  a 
single  claim,  either  as  an  adjoiner  or  near  neighbor, 
makes  a  sufficient  description.  That  a  mine  or  min- 
ing claim  may  be  a  permanent  monument  and  that  if 
not  so  developed  or  known  as  to  be  a  permanent  mon- 
ument the  proof  of  such  fact  is  upon  the  objecting 
party.— Book  v.  Justice  Co.  58  F.  106;  Riste  v.  Morton, 
49  P.  656;  Kinney  v.  Fleming,  56  P.  123;  Seidler  v. 
Lafave,  20  P.  789,  overruling  the  Baxter  case,  supra; 
Shattuck  v.  Costello,  68  P.  529. 

A  notice  calling  for  adjoiners  on  all  four  sides 
was  held  valid,  although  the  claim  was  described  as 
in  a  quarter  section  different  from  the  true  one. — 
Duryea  v.  Boucher,  7  P.  'i?L 


54  DISCOVERY  AND  LOC'ATK  »N. 

Description  by  Degrees  and  Minutes  Not  Essential. 
A  record  based  on  a  location  made  as  above  di- 
rected, the  corners  and  side  stakes  being  marked  and 
the  notice  set,  which  so  identifies  the  situation  of  the 
claim  (by  reference  to  natural  objects  or  permanent 
monuments  tied  to  its  discovery  shaft  or  corners » 
that  it  may  be  readily  found  by  a  stranger  examining 
the  record,  and  for  courses  calls  for  some  certain  gen- 
eral direction  and  otherwise  complies  with  all  the 
statutory  requirements  herein  stated — is  as  valid  as 
one  which  calls  for  degrees,  minutes,  metes  and 
bounds. 

The  Terms  Southerly,  Northerly,  Etc.,  as  used  by 
miners  in  location  certificates  and  notices,  are  not 
to  be  read  as  due  south  or  due  north  so  as  to  defeat 
the  location. — Smith  r.  Newell,  86  /•'.  56;  f/'/a.s.v  v. 
Basin  Co.  55  P.  J0.fi:  \V\Usee  v.  King  Co.  f>o  /'. 
And  the  word  "west"  may  be  read  "east"  when  neces- 
sary to  close  upon  the  starting  corner. — Upton  v. 
Santa  Rita  Co.  89  P.  27.;. 

Precautions  at  Time  of  location. 

The  side  and  corner  stakes  being  properly  set, 
the  location  stake  fixed  and  properly  inscribed,  and 
the  distance  to  ties  or  monuments  measured,  take 
the  precaution  at  the  time  to  measure  the  depth  of 
the  discovery  shaft  to  see  that  the  full  ten  feet  in 
depth  exist,  recollecting  that  the  collar  is  apt  to  cave 
in  and  the  bottom  to  fill  up  with  soil,  inviting  an 
attack  on  the  location  for  want  of  legal  discovery. 
Note  the  exact  result  of  this  measurement  on  the 
location  stake. 

Size  of  Stakes,  Etc. 

The  statute  says  that  the  posts  shall  be  sub- 
stantial and  shall  be  sunk  in  the  ground.  The  Land 
Office  regulations,  on  survey  for  patent,  require  them 
to  be  not  less  than  four  inches  in  diameter,  three 
feet  long,  and  set  eighteen  inches  in  the  ground;  it 
of  stone,  twenty-four  inches  long. — Rule  ]'/•'>. 


DfflO  -VKKY  AND  i.o- \\TION.  55 

Trees,  Stumps  and  Boulders  as  Corner  Posts. 

In  PoUard  v.  Shively,  J  Colo.  309;   I  If.   /' 

i  he  court  held  that  a  stump  properly  marked  might 
be  adopted  as  a  boundary  stake,  and  there  is  no 
doubt  that  a  stone  post  literally  complies  with  the 
law.  And  the  calling  for  trees  as  corners,  when  In 
fact  stakes  stood  for  corners,  has  been  treated  as 
immaterial  error,  when  there  were  other  calls  by 
whi.-h  to  fix  the  claim. — Upton  v.  Larfcin,  7  Mont.  ',',<>; 
15  M.  P.  ',<>',;  ihuisnn  v.  Flet  /'  \80.  The 

L.  O.  Regulations  also  recognize  both  stones  and  rock 
in  place.— y.'///' 

Cutting  a  letter  into  a  solid  rock  held  not  equiv- 
alent to  a  stake. — Taylor  v.  Parenteai<  ffi  /'. 

Where  Stakes  Can  Not  be  Set. 

When-  a  stake  can  not    be  driven  on  account  of 
liould  be  fixed  in  a  pile  of  stones,  and  in 
<)tti<  ial   surveys  this  marking  is  required  in  all  cases. 
Where  a  stake  can  not  be  set  on  account  of  precipi- 
ground,  the  witness  stake  should  be  set  as  near 
as  possible  and  on  it  should  be  expressed  the  course 
and  distance  to  the  corner  or  center  stake,  for  which 
it    is  a  substitute.     The  provisions  of  the  Colorado 
statute    on    this    poin'  »    can  not  be    invoked 

•re  the  setting  of  the  stakes  is  merely  difficult  or 
inconvenient. — Crusus  Co.  v.  Colorado  Co.  in  / 
Where  the  stakes  on  one  end  of  the  claim  are  not  set, 
merely  because  the  point  was  difficult  of  access,  it 
was  held  that  the  claim  was  not  valid. — Id.  A  like 
ruling  was  made  where  a  corner  fell  upon  a  railroad 
embankment. — Beals  v.  Coin.  >i ;  /».  .'»;/;.  And  as  a 
matter  of  course,  the  failure  to  set  them  through  in- 
advertence or  neglect  would  be  fatal. — Patterson  v. 
Tarbell,  37  P.  7ff. 

Variation  Between  Courses  and  Monuments. 

As  the  result  of  carelessness,  accident  or  defect- 
ive instruments,  variations  between  the  courses 
called  for  in  the  record  and  the  monuments  on  the 
ground,  are  matters  of  constant  occurrence.  The 


56  DISCOVERY  AND  LOCATION. 

general  rule  in  such  cases  is  that  the  monuments 
control.— Cullacott  v.  Cash  Co.  8  Colo.  119;  15  M.  R. 
302;  Book  v.  Justice  Co.  58  F.  106;  Stonewall  Co.  v. 
Peyton,  2*  So.  4^0;  Galoraith  v.  Shasta  Co.  16  P.  901; 
Treadwell  v.  Marrs,  83  P.  350. 

But  it  was  held  in  the  Hardin  Lode  case,  5  Colo. 
309;  2  M.  R.  229,  that  the  monuments  would  not  con- 
trol where  they  varied  from  the  kind  of  monuments 
called  for  in  the  record — that  a  call  for  a  "post" 
not  satisfied  by  a  "stump" — and  further,  that  in  the 
case  of  possessory  claims  the  monuments  must  be 
kept  up. 

From  this  it  follows  that  while  a  claim  remains 
unpatented  if  there  be  in  fact  a  variance  between  its 
calls  and  its  ties  making  it  necessary  to  correct  its 
calls  by  its  ties,  that  the  stakes  or  other  monuments 
must  be  maintained  on  the  ground.  Otherwise  the 
calls  in  the  location  certificate  would  control.  In 
the  same  case  the  Court  says  that  this  ruling  is  es- 
sential to  prevent  the  swinging  of  locations. 

Variations  Chargeable  to  Connected  Plat. 

The  U.  S.  Surveyor  General  of  each  state  keeps 
what  is  called  the  "Connected  Plat."  purporting  to 
show  every  approved  survey  in  relation  to  each 
other  on  its  proper  section.  Where  the  first  survey 
on  any  section  made  an  erroneous  call  for  a  Gov- 
ernment corner,  say  1300  feet,  when  the  proper 
measurement  was  1600  feet,  it  was  platted  as  1300 
feet  distant.  A  second  survey  correctly  measured 
would  show  a  certain  distance  from  the  corner,  but, 
of  course,  would  not  tie  to  the  first  survey  as  traced 
on  the  connected  plat.  Instead  of  recognizing  the 
error  as  soon  as  discovered  the  department  persist- 
ently for  years  compelled  each  successive  applicant 
to  treat  the  first  survey  as  correct  and  tie  to  it  ac- 
cordingly. 

This  resulted  in  the  issue  of  patents  which 
really  overlapped  prior  surveys,  but  the  field  notes 
appeared  clear  of  any  overlap;  conversely,  an  overlap 
and  consequent  exclusion  would  appear  where  there 
was  in  fact  no  conflict  with  any  prior  survey. 


DISCOVERY  AND  LOCATION.  >7 

It  was  to  remedy  this  state  of  affairs  that  A.  C. 
§2327  was  amended  in  1904  (p.  512).  The  effect  of 
the  amendment  is,  however,  only  to  emphasize  the 
common  law  rule  declared  in  the  Cullacott  case  above 
cited. 

Maintaining  Stakes. 

Once  properly  set  stakes  have  performed  their 
original  office  and  their  subsequent  removal  or  ob- 
literation not  done  by  the  act  of  the  party  does  not 
vitiate  the  claim.— Book  v.  Justice  Co.  58  F.  107; 
McEvoy  r.  /  5  F.  596;  15  M.  R.  397;  Smith 

v.  Newell,   36  /'. 

But  where  not  maintained,  a  misdescription  in 
the  record,  otherwise  immaterial,  may  become  seri- 
ous, if  not  fatal,  as  above  stated,  because  to  correct 
courses  or  other  errors  by  monuments,  the  monu- 
ments must,  in  general,  be  found  upon  the  ground. 
A  location  May  be  Made  by  an  Agent,  and  in 
such  case  written  authority  is  not  essential. — Hurley 
v.  Ennis,  2  Colo.  300;  12  M.  R.  360;  Schultz  v.  Keeler, 
/;  /'.  ;*/;  Rush  v.  French,  25  P.  816;  Dunlap  v. 
ruttisnn.  42  P.  504;  Moore  v.  Hamerstag,  18  M.  /.'. 
Oat.  i'.  I.  In  such  case  the  location  certifi- 
cate should  be  signed  by  writing  the  name  of  the 
principal,  followed  by  that  of  the  agent — "Barton  A. 
Hopkins  by  J.  Mason  Hall,  agent."  In  writing  names 
on  stakes  and  notices  this  is  unnecessary — write 
only  the  name  of  the  principal — because  such  a 
signing  is  not  a  signature  and  it  is  immaterial  by 
whom  done  so  that  the  act  is  recognized  or  adopted 
by  the  party  whose  name  is  used.  Even  in  sub- 
scribing the  location  certificate  the  names  are  often 
written  by  the  party  who  makes  out  the  body  of  the 
paper  (without  any  mention  of  agency),  and  we  do 
not  apprehend  that  this,  invalidates  the  document. 
Such  writings  are  obviously  of  a  class  different  from 
deeds,  notes,  etc.,  where  a  name  can  be  legally  sub- 
scribed as  a  rule  only  by  the  party  himself  or  by 
one  fully  authorized  so  to  do  by  power  of  attorney 
or  other  formal  authorization. — Morton  v.  Solambo 


58  DISCOVERY  AND  LOCATH  )N. 

Co.  26  Cal.  521;  4  M.  A'.  .'//;,?;  Gore  v.  AfcBroyer,  18 
Cal.  583;  1  M.  R.  6 jo;  Morrison  v.  Regan,  61  P.  !>•'>'>. 
Where  a  location  is  made  in  the  name  of  a  sup- 
posed principal  there  must  either  be  a  previous 
authorization  to  use  the  name  of  a  principal  or  a 
subsequent  ratification  or  adoption  of  the  act. 
Where  the  name  of  an  absent  person  is  used  without 
his  knowledge  there  is  no  legal  owner  to  the  claim — 
no  person  to  stand  for  its  paternity — and  the  loca- 
tion is  not  good  as  against  a  later  valid  appropriation. 
Thompson  v.  Spray,  12  Cal.  .>.?/. 

A  Corporation  May  Locate. 

rl"h is  has  been  expressly  decided  in  the  cases  of 
McKinley  v.  Wheeler.  130  U.  »Sf.  tf.R  and  Tl«n,,as  v. 
Chisholm,  13  Colo.  105.  It  is  required  only  that  it  be 
chartered  under  the  laws  of  some  federal  State  or 
Territory.  As  to  the  citizenship  of  its  stockhelders. 
see  Doe  v.  Waterloo  Co.  10  /•'.  /'/.;. 

Minors, 

The  case  of  Thompson  v.  &;>/</>/.  7 ._>  Cal.  ."».,/.  holds 
that  a  minor  child  may  make  a  valid  mining  loca- 
tion. Where  a  minor  old  enough  to  prospect  ami 
work  locates  a  claim  we  do  not  see  why  his  minority 
should  invalidate  his  title,  but  the  use  of  the  names 
of  minor  children  to  obstruct  creditors  or  for  other 
sinister  purpose  should  certainly  be  unable  to  resist 
attack  made  in  proper  form.  Where  a  minor  takes 
by  descent  his  title  is,  as  unimpeachable  as  that  of 
his  ancestor. 

By  Government  Employe — Deputy  Surveyor. 

Section  452,  R.  S.,  prohibits  the  location  of  gov- 
ernment land  by  any  officer,  clerk  or  employee  of 
the  General  Land  Office.  In  Lavagnino  v.  Uhlig,  II 
P.  1046,  the  Supreme  Court- of  Utah  held  that  a  lode 
location  by  a  Deputy  Mineral  Surveyor  was  void 
under  said  Section.  On  appeal  the  Federal  Supreme 
Court  did  not  pass  on  the  point.— J98  U.  S.  J,',3.  In 
the  late  case  of  Hand  v.  Cook,  92  P.  3,  the  Supreme 
Court  of  Nevada,  by  a  majority  opinion,  held  that 


DISCOVERY  AM)  LOCATION.  .v.» 

such  Deputy  was  not  a  government  employee  and  his 
location  was  valid. 

Location  Prevented  by  Colluding  Co-Tenant. 

If  the  staking  and  record  are  in  fact  not  made 
the  claim  never  becomes  perfected,  although  the  rea- 
son be  that  a  co-owner  violated  his  duty  by  colluding 
with  third  parties  and  allowing  them  to  take  up  the 
ground.  The  sole  remedy  of  the  injured  party  is  by 
appropriate  action  against  his  co-owner,  based  on  his 
fraud. — LockJxirt  r.  Wills,  •'>'/  /'. 

Irregular  Locations. 

The  contemplation  of  the  law  is  that  a  lode  claim 
should  be  substantially  a  parallelogram. — Del  Monte 
case,  111  U.  .<  t  it  seems  that  with  the  limita- 

tion that  the  length  may  not  exceed  1,500  feet  nor  the 
width  600  feet  a  location  may  be  madr  in  any  con- 
venient shape,  the  only  loss  from  such  form  of  sur- 
vey being  that  n<>  teral  rights  can  be  claimed 
for  a  survey  which  has  not  parallel  end  lines.  Sur- 
veys in  the  shape  of  a  horse  shoe  and  in  the  shape 
of  a  triangle  respectively  were  considered  in  the 
US  ('.  8.  I'.ni;  \:>  M.  if.  r,',i.  and  in 
Montana  Co.  v.  Claris.  'tt  r.  <;.'<;.-  //;  .!/.  if.  *n— and  to 
both,  all  dip-rights  were  denied.  In  the  North  Star 
case,  83  F.  658,  both  patents  were  of  no  conformable 
shape,  but  each  of  them  had  issued  on  a  consolidation 
of  claims  located  before  1872.  "There  is  liberty  of 
surface  form  under  the  Act  of  1872." — Walrath  v. 
Champion  Co.  Ill  U.  8.  312. 

Locating  Across  the  Strike. 

The  loss  of  extralateral  rights  by  such  location 
is  considered  under  API  x.  In  Walsh  v.  Mueller,  J/0 
/'.  192,  location  had  been  made,  fraudulently,  as  was 
alleged  in  the  complaint,  across  instead  of  along  the 
strike.  We  can  not  see  how  fraud  could  be  predi- 
cated upon  such  fact  standing  alone.  It  simply  loses 
the  right  to  follow  on  the  dip  and  the  surface  be- 
yond the  proper  distance  from  center  of  vein  is  open 
to  hostile  location,  as  explained  by  diagram  on  p.  21. 


60  STATUTORY  REQUIREMENTS. 

Sunday. 

la   Union  Co.  v.  Leitch.  64  P.   829,  the  first  act 
of  location  was  done  on  a  Sunday  and  in  the  sir 
quent  contest  no  point  was  made  on  this  fa 

It  has  been  intimated  that  where  the  last  day  of 
filing  falls  on  a  Sunday  the  locator  is  within  the  time 
if  he  files  on  the  Monday  following. — C<>1  '<>.  v. 

Duchess  Co.  79  P.  385. 

Neglect  of  Statutory  Details  of  location. 

Omission  to  establish  center  end  stake  (along 
with  failure  to  verify  the  certificate)  held  fatal  under 
Oregon  Statute.— Wright  v.  Lyons.  77  P.  .S/.  The 
same  as  to  corner  stake  in  Colorado. — Seals  v.  Cone, 
20  M.  R.  592;  62  P.  948.  Contra.  Warnock  v.  De- 
Witt,  11  Utah,  324;  40  P.  205.  Compliant  with  I 
law  must  be  proved. — Copper  'Olo be  Co.  v.  AUman.  ,11 
M.  R.  296;  64  P.  1019. 

Parties  made  a  location  valid  to  the  extent  of 
the  Congressional  requirements,  but  failed  to  comply 
with  the  State  Statute  then  in  force.  The  S 
Statute  was  repealed  while  the  locators  continued  in 
possession.  Held  that  upon  the  repeal  the  location 
became  valid.  MCFARLAND,  J.,  dissents.  '/  r. 

Dyer,  145  Cal.  12;  78  P. 

A  location  notice  is  not  required  by  the  U.  S. 
Mining  acts,  nor  at  all  if  not  called  for  by  District 
Rule  or  Statute. — Anderson  v.  Caniilu'i/.  >/  /' 


TABLE  OF  STATUTORY  REQUIREMENTS. 


Indispensable  Federal  Requirements. 

Whether  required  or  not  by  State  Statute  or  Dis- 
trict Rules,  the  Federal  Statute  requires  that  the  lo- 
cation must  be  distinctly  marked  on  the  ground,  so 
that  its  boundaries  can  be  readily  traced,  and  the 
location  certificate  must  contain  (1)  the  name  or 
names  of  the  locators,  (2)  the  date  of  the  location 
and  (3)  such  a  description  of  the  claim  or  claims 


STATUTORY  REQUIREMENTS.  til 

located  by  reference  to  some  natural  object  or  perma- 
nent monument  as  will  identify  the  claim. — R.  S. 
Sec.  I 

Taking  Colorado  as  a  basis  for  the  manner  of 
locating  and  recording  lode  claims,  the  difference  in 
the  regulations  of  the  other  States  and  Territories 
of  the  Pacific  slope  is  neted  in  each  paragraph  num- 
bered to  correspond  with  the  Colorado  table  below: 

Before  filing  his  location  certificate  the  discov- 
erer is  required  by  Statute  in 

Colorado. 

1.      To    post    MI    ih.>    point    of  .    on    tin-    sur- 

.1    notirr    rontaininj:    ilu>  name  of  the   lode,   the   name 
of    ih,.    locator    and    ih,.    date    of   the    discov<  i  \ 

J      Within   sixty   days  from  the  discovery,  to  sink  a 
dteooren  ihaft   too   feet   deep,   fn»m  tin-  io\\.si    pan  «.r  \\\<- 
rim  of  shaft,  or  deeper,   ii"  necessary.   t<>  show   a   \\.-ll  defined 
ice. 

3.  To    mark    the    surface    boundaries    by    six    i> 
sunk    in    the   ground.    «.ne   at   each    corner   and    <>n«-    at    »h«> 
•  ••liter   of  each   side   lino   h»\\«i   or   marked   on    the  side   or 
sides   in   towards   the   claim. 

4.  The  disclosure  of  the  lode  in  an  open  cut,  cross- 
cut,  or   tunni'l    at    tin-   d.-pth   of  ten  feet   below    th»>   sin 

in  adit  at  least  ten  foot  iu  along  the  lode,  suffices 
instead  of  the  t»-n  foot  shaft. 

."•.  Within  tin...  months  from  d.-.t.-  of  discovery  in 
tile  a  location  certificate  with  iho  ('<.unty  K«-c..rd.-r  ^ivln^ 
a  proper  description  of  the  claim,  as  ivqnin-d  l.y  Federal 
Statute,  and  containing  also: 

name  of   the   lod.  : 

b. — the  name  of  the  locator; 

c. — the  date  of  the  location  ; 

•  1       the    number    of    feet    in    length    <>n    «  a<  h    si.l 
tin-   center   of  the  discovery  shaft,  and 

e. — the  general  course  of  the  lode. 

Alaska. 

nn  .him'  •'..  1000,  Congress  passed  an  Act  purporting 
to  l»e  a  full  code  of  Statute  Law  for  this  Territory. — SI 
xt.  L.  S21. 

It  leaves  the  status  of  mining  titles  the  same  as  in 
those  States  which  have  but  few  statutory  regulations. 

.  It  provides  for  three  Recording  Divisions  and  these 
Divisions  ar»«  to  be  subdivided  into  Recording  Districts, 
for  each  of  which  is  provided  a  recorder. 

The  Clerk  of  the  Court  is  ex  officio  recorder  of  all 
that  parr  of  any  Recording  Division  not  set  off  into  record- 
ing districts. 


62  STATUTORY  REQUIREMENTS. 

I'ntil  the  District  Recorders  are  appointed  tin-  min- 
ers may  appoint  a  recorder  of  any  organized  local  min- 
ing district. — Sec.  jc,. 

There  is  obvious  confusion  in  th<  'ions,  hut 

it  seems  evident  ili.-it  ih.'  oilice  <»f  the  recorder  of  tin-  re 
cording  district  is  the  place  where  records  are  ultimately 
to  be  filed. 

The  Act  allows  in  >  fur  the 

record,  and  while  hy  its  general  t.  •  -.irily  requiring 

a  discovery  and  such  m. irking  of  hounds  and  ii. -script  ion 
;is  are  every where  required  |,\-  the  terms  of  I;  •_"_' I. 

(fill.  ..'.{  tiinl  ii'.»}.  it  dors  imt  require  ;i  discovery  shaft  or 
any  other  special  condition.  Sections  1 ."»  and  'J<»  of  tin- 
act  are  printed  under  the  heading  AIASKA. 

Arizona. 

1.  Krect  at  point  of  discovery  stone  monument 
three  feet  high,  or  a  post  four  feet  ahove  ground,  mi  which. 
post  notice  signed  hy  locator  containh 

a.--- Tin-    name    of    the    claim    loc.-n. 

b. — The  name  or  names  of  the  locators. 

c. — The    date    of    ill,-    I. .cation. 

d.~  The  length  and  width  of  tlie  claim  in  feet.  and 
the  distance  in  feet  from  the  point  of  discovery  to  each 
end  of  the  claim. 

e. — The    general    course    of    ihi-    claim. 

f.— The  iocality'  of  the  claim  with  reference  to  some 
natural  object  or  permanent  monument  whereby  the  claim 
can  he  identified. 

'_'.      \Yiihin     '.">     d;  the     time     of     the     loca- 

tion" sink  discovery  shaft  lo  feet  de,-p  from  lowest  part 
of  the  rim  at  the  surface,  or  deeper,  ii  how 

mineral    in    place. 

.",.      Within     same     time    mark     l.oimd.-iries     hy     «'. 
stantial    posts,    projecting   ;n    !•  ;    ahove    the    sin 

of  the  irroiind.  or  hy  suhstantial  stone  monuments  at  least 
::  feet  hi-h.  to-wit,  one  :it  each  corner,  and  one  .-it  tin- 
center  of  each  end  line. 

4.  Same  as  Colorado;  amount  of  work  must  In- 
equal  to  a  shaft  1"  iVi-t  deep  and  4  feet  wide  hy  »;  feet 
long. 

.">.  Within  ninety  days  from  time  of  location,  record 
with  the  County  Recorder  a  copy  of  the  location  notice 
pest cd. 

0.  The  Act  of  1!><n  requiring  the  certificate  to  state 
that  the  whole  or  any  part  of  the  new  location  is  on 
ahandoned  ground  was  repealed  in  I'.HIT.  and  such  ground 
may  lie  taken  up  hy  the  same  acts  and  formula  as  if  orig- 
inal public  domain,  with  no  reference  to  the  fact  of  aban- 
donment. 

California. 

"No  statutory  regulations.  A  Mining  Code  was 
enacted  in  IN'.'T.  hut  repealed  in  1S!>'».  The  manner  of 
staking  and  other  incidents  of  location  are  controlled  by 


STATCT«>KY  REQUIREMENTS.  63 

district    rules.    :m<l    i,  i          Bet     ,.•  I  'lit  se 

rules    usually    prescrihe    time    for    lilinu    local ion    certificate, 
i  l.Y.t    ;unl    1  1  »;<i.    civil    Code,     1'."'l.    a     record 
with    the    Coun;  r    seems    t«,    he    required. 

Idaho. 

1.      At    time   of   diSCOYerj?    Bred    monument    at    place   of 
-.  ing    :i    n«>t;  <!orado,    adding    dis- 

tance   claimed    almm    vein    each    uay    from    monument. 

\\'itliin   BU  '*after   such   location"   sink   ojis 

eorerj  shaft  HI  i.-,-t  <l«ep  from  lo\\,si  part  of  the  run. 
au.l  of  ii. n  le-s  ihan  H".  -».;iiarr  f«-i-t  area. 

Within    Hi    <lays    after    <!isc..vrry    mark    Imund: 
l>y    monuments    MI     ••.-ich    r.u-ner    and    at     radi    ani:le    in    side 
lines,    rii.-irk.-d    with    name    of    claim    and    comer    or    anjje    it 

represents.      Monument!    ;   Ml    be    four    feet    aimvr   groiind; 

inn^t     !•••  -ipiare    or    diameifr.     and 

hewn    and     marked    «>n     side     faeini:     • 

4.  Any  excavation  which  cuts  the  vein  H>  feel  deep 
and  in-  el  in  extent  shall  he  sullicient. 

within   (.to   d;i\s  after   location    tile  \\itii   c..utity 

Mninu    IMsiriel    a    BUbStaD 
tial    c..|.\  with    allidavit 

of      one     of      |oc;i  (hat      he      is      a      eili/.en      of      the 

I'niied     81  •  «1     his     intentions:     that     he     is    1C 

quainted     with     the    -round    claimed    and    that     no    part     has 

;••«!.     tliat     it     bl  .r-iandon,-i| 

or  forfeited  hy  reason  of  (he  failure  of  the  former  locators 
to  <-om|ily  in  "respect  thereto  with  the  requirements  of  law. 
and  that  he  has  opened  new  ground  to  the  extent  or  depth 
of  ten  feet  as  required  hy  the  laws  of  Idaho. 

»'•.  At  the  time  of  marking  houndarhs  post  at  the 
•very  monument  'iitainin^  the  name 

of  the  locator,  name  of  the  claim,  date  ,,:  di-eovery.  the 
direction  and  distance  claimed  aloim  the  ledp-  from  I  he 
discovery,  the  distance  claimed  mi  ea.-h  sid.-  «»f  the  middle 
of  the  led-e.  the  distance  and  direct  ion  from  the  discovery 
monument  to  such  natural  ohject  or  permanent  monument. 
if  any  such  there  |,e.  as  will  lix  and  descrihe  in  the  notice 
itself  flie  location  of  the  claim  and  the  namo  of  the  mining 
District.  County  ami  State.  fife<  I,<KI, 

The  County  Recorder  within  1  }  davs  after  receipt 
.•f  any  location  certilicate  is  required  to  send  it  to  tin- 
Deputy  Recorder  of  the  Mining  District,  who  records  and 
returns  it  to  the  County  Recorder. 

Montana.     (Act  of  1907.) 

1.  I'ost  conspicuously  at  point  of  discovery  a  notice 
containing  the  name  of  the  claim,  name  of  locator,  date 
of  location,  which  shall  be  the  date  of  posting,  "and  the 
approximate  dimt -nsions  or  area  of  the  claim." 

I'.  Within  :',<>  <lays  after  posting,  place  monument 
at  each  corner  or  anirlc.  to  wit  : 


64  STATUTORY  REQUIREMENTS. 

a.— A  tree  at  least  8  inches  in  diameter  bla/.ed  on 
four  si«|t  B. 

h.      A   posi    at  least  4  inches  square  by  4%  feet   1 
iel     1    foot    in    the   ground,    unless   solid    rock    occur    at    less 
depth,  surrounded,  in  all  mound  of  earth  or  stone, 

at  least  4  feet  in  diameter  by  L*  feet  high.  A  squared 
stump  of  same  si/e  ;md  so  mounded  is  the  equivalent  of  a 
post. 

<•.—  A  st<,ne  m  least  »;  indies  square  by  18  inches  in 
length,  sei  -J  :;  ,,f  its  length  in  ilu>  ground,  with  a  in«'iinil 
"T  earth  or  stone  alongside  at  least  4  feet  in  diameter  by 
2  feet  in  height,  or 

•  I  A  boulder  at  least  3  feet  above  tin-  natural  sin- 
face  of  the  ground  on  the  upper  side. 

The    above    classes    of    monuments     (a-d)     are    • 
merated    as   jnhnd   f<iri<    sufficient,   hut    if    others    an-    used    it 
shall   he.   a  jury   question   whether   they   snlliciently    mark    tin- 
location   so    that    "its    boundaries    can    !"•    read: 

Kach  monument  must  he  marked  with  name  of  claim 
and  designation  of  the  corner  either  by  numb. -i  or  cardinal 
point. 

Within  60  days  after  posting,'  sink  discovery  shaft 
of  at  least  10  feet  vertical  depth  in-low  lowest  part  of 
the  rim.  or  deeper  if  necessary,  to  disclose  tin-  vein.  Cn 
bical  contents  must  be  not  less  than  ir.o  cubic  feet. 

Any  cut  or  tunnel  which  discloses  the  bide  at  1"" 
feet  vertical  depth,  with  ir.o  cubic  feet  of  excavation,  is 
equivalent  to  a  discovery  shaft. 

Where     the    vein     is     di  than     1'»    feet 

depth  any  deficiency  in  the  depth  of  the  discovery  may  be 
compensated  by  equivalent  work  at  other  points  on  the 
claim.  At  least  7.".  ruble  feet  of  excavation  must  show  ii: 
the  discovery  shaft,  and  the  other  7.".  feet  may  be  done  • 

where. 

5.  Within    <;<>    days    after    posting    file    with    County 
Recorder   certificate   of  location   containing:      (a)    the  name 
of    the    lode:     ibi    the    name   of    the    locator;    (c)    date    of 
location    and   such    description    with    reference    t<i   natural    ob- 
ject as   will    identify    the   claim:    (d»    the   direction  and  dis- 
tance  claimed  along  the   course  of  the  vein   each   way   from 
the  discovery,  and  the  width  on  ench  side  of  the  celter  of 
the  vein. 

6.  The  location   Certificate   must   be  verified   by  one 
of   the.    locators,    or   the    authorized    agent    of    jthe    local 

or  by  any  officer  or  agent  of  the  company,  when  a  corp 
tion   is  the  locator. 


VKUIFK-ATION. 


State  of  Montana,        ) 
low,    \  ' 


County  of  Silver  Bow, 

Before  me,  the  subscriber,  a  Notary  Public  in  and 
for  said  county,  personally  appeared  TV.  E.  Cullen,  to  me 
personally  known,  who,  being  duly  sworn,  saith  that  he 
is  a  citizen  of  the  United  States  and  discoverer  and  locator 


STATUTORY  REQUIREMENTS.  65 

of  the  Asia  Lode  described  in  the  within  certificate  of 
location  subscribed  by  him:  that  tin*  claim  is  staked  and 
located  on  the  ground  as  in  said  ccriiiicate  described,  and 
that  UK-  location  notice  N\:>.S  posted  at  the  point  of  dis- 
,  ml  that  the  said  cert  ilk-ate  and  all  statements 
therein  made  are  correct  and  true. 

\\ .  B.  CULLEN. 

Sworn    and    subscribed    before    me    this    first    day    of 
October,  A.  D.,  1907. 


Notary  Public. 

Nevada.     (Act  of  1907.) 

1.  Juc  l.  r.MK.x  NOTICES. — The  discoverer  posts 
notice  "at  ih'-  time  and  point  of  discovery."  which  notice 
must  contain  the  name  of  the  lode,  the  name  of  the  locator, 
i In-  date  oi  location,  the  number  of  feet  claimed  each  way 
fro  in  point  of  discovery,  the  width  on  each  side  of  the  cen- 
t*i  ..i  the  vein,  and  the  general  course  of  the  vein. 

Later.  when  the  monuments  are  placed,  he  is  re- 
quired to  post  the  same  notice  on  some  one  of  his  monu- 
ments. 

-       Discovni    SHAFT. — There    must    be   a    discovery 
Feet   an*!    10  feet  deep  from   the  lowest  part 
of  the  rim  of  the  shaft  at  the  surface,  or  deeper  if  neces- 
sary,  to  show   mineral   in   place. 

A  crosscut,  showing  the  lode  at  a  depth  of  10  feet, 
or  an  open  cut  along  the  vein  containing  the  same  cubical 
displacement  as  a  shaft  4  by  6  by  10  feet,  is  equivalent  to 
a  discovery  shaft. 

MI;  TO  SINK  AM»  MOM  MI:M. — Ninety  days  are 
allowed  to  complete  discovery,  but  the  claim  must  be  mon- 
uniented  within  1:0  days  from  date  of  posting. 

4.  M".M  MI: NTS. — Must  be  placed  at  each  corner 
and  at  center  of  each  side  line,  and  may  be  trees,  posts, 
stones,  stumps,  or  rock  in  place. 

"All  trees,  posts  or  rocks  used  as  monuments,  when 
not  4  feet  in  diameter  at  the  base,  shall  be  surrounded 
by  a  mound  of  earth  or  stone  4  feet  in  diameter  by  2  feet 
in  height." 

Assuming  that  the  use  of  a  tree  or  post  4  feet  in 
diameter  would  be  so  rare  an  instance  as  practically  never 
to  occur,  the  only  construction  of  the  statute  is  that  all 
the  monuments  should  be  surrounded  by  these  mounds  of 
earth  or  stone  4  feet  square  by  2  feet  high.  Where  a  tree 
is  used  as  a  monument  it  must  have  a  diameter  of  not  less 
than  4  inches  and  be  cut  off  not  less  than  3  feet  above  the 
ground  and  blazed  and  marked. 

Where  rock  in  place  is  used  as  a  monument  it  must 
be  capped  with  loose  stone  to  a  height  of  not  less  than  3 
feet. 

Posts  must  be  at  least  4  inches  in  diameter  by  4*& 
feet  in  length,  set  1  foot  in  the  ground. 


66  STATUTORY  REQUIREMENTS. 

When  a  loose  stone  is  used  as  a  monument  it  must 
be  at  least  6  inches  in  diameter  by  18  inches  long,  set 
two-thirds  of  its  length  in  the  top  of  a  mound  of  earth  or 
stone  4  feet  in  diameter  by  2^  feet  high. 

All  monuments  "must  be  so  marked  as  to  designate 
the  corners  of  the  claim  located." 

5.  LOCATION  CERTIFICATE. — Must  be  filed  within  '.»<> 
days  from  date  of  posting,  with  County  Recorder,  and  with 
the  District  Recorder  if  there  be  one.  It  must  contain : 

a. — The  name  of  the  lode  or  vein. 

b. — The  name   of  the  locator. 

c. — The  date  of  the  location  and  such  description 
with  reference  to  some  natural  object  or  permanent  nofonu- 
ment  as  will  identify  the  claim. 

d. — The  number  of  linear  feet  claimed  in  length 
along  the  course  of  the  vein  each  way  from  the  point  of 
discovery,  with  the  width  on  each  side  of  the  center  of 
the  vein,  and  the  general  course  of  the  lode  or  vein  as 
near  as  may  be. 

e. — The  dimensions  and  location  of  the  discovery 
shaft  or  its  equivalent,  sunk  upon  the  claim. 

f.  The  location  and  description  of  each  corner, 
with  the  markings  thereon. 

SPECIAL  RECORDS. — The  Act  provides  for  the  filing, 
after  the  monumentlng,  with  th»»  District  Recorder,  of  a 
preliminary  "notice  of  location,"  and  also  for  a  third  filing 
after  survey  by  a  deputy  U.  S.  or  licensed  St.m-  Surveyor, 
both  of  which  filings  are  optional  and  useless  except  to 
provide  prima  facie  proof  of  the  acts  of  discovery  and  loca- 
tion which  same  function  is  allowed  to  the  original  loca- 
tion certificate. 

New  Mexico. 

1.  Post    in    some    conspicuous    place    on    location    a 
notice  in  writing  stating  thereon  the  name  of  the   locator, 
his  intention  to  locate  the  claim,  and  a  description  of  the 
claim,   by   reference   to  natural   object   or   permanent   monu- 
ment. 

2.  Within    00  days   from   date   of   taking   possession 
sink  a  discovery  shaft  to  a  depth  of  at  least  10  feet  from 
the  lowest  part  of  the  rim,  exposing  mineral   in  place. 

3.  Mark     surface     boundaries     by     four     substantial 
posts   or   monuments    one   at   each   corner    of   the   claim    so 
as    to    distinctly    mark    the    claim    on    the    ground    so    that 
its   boundaries   can   be  readily   traced. 

4.  Same    as   Colorado. 

5.  Within  three  months  after  posting  notice   record 
a  copy  thereof  in  the  office  of  the  Recorder  of  the  County. 

North  Dakota. 

1.  Same    as    Colorado,    adding   length    on    each    side 
of   discovery   and    width    on    each   side    of   lode. 

2.  Within   60   days    from   uncovering   lode   sink    dis- 
covery  shaft  sufficient  depth   to  show   well   defined  mineral 
vein    or    lode. 


STATUTORY  REQUIREMENTS.  67 

3.  MAI:KIN«;   BOUNDARIES. — "Such  surface  boundaries 
shall    be   marked   by   8   substantial    posts,    hewed    or    blazed 
on    the    side    facing    the    claim,    and    plainly    marked    with 
the    name   of   the   lode  and   the   corner,   end,    or   side   of   the 
claim    that    they    respectively    represent,    and    sunk    in    the 
ground    as    I'M|I«.\VS:      One    at    the    corner    and    one    at    th«» 
center  of  each  side  line,  and  one  at  each  end  of  the  lode." 

4.  Same  as  Colorado. 

5.  Within  «50  days  from  date  of  discovery  record  in 
office  of  Register  of   Deeds  a   location   certificate  containing 
same   as   Colorado,    adding    width    claimed    on   each    side   of 
vein. 

Oregon. 

l.  To  post  notice  containing  name  of  lode,  nanu> 
of  locator,  date  of  location,  number  of  feet  in  length 
claimed  oarh  way  from  discovery,  width  on  each  side  of 
general  course  or  strike  of  the  vein  or  lode 
as  nearly  as  may  !•»•.  with  reference  to  some  natural  ob- 
ject or  permanent  monument  in  the  vicinity  thereof." 

L'  Within  «;o  days  from  date  of  posting  to  sink 
discovery  shaft  at  least  10  feet  deep  from  lowest  part  of 
rim,  or  deeper  if  necessary,  to  show  lode  or  deposit  in 
place. 

3.  Within    ."."    days    after   posting,    mnrk   boundaries 
-ix  posts  or  mounds   of  stone,  or  earth  and   stone,   one 

ach  corner  and  one  at  center  ends  of  claim  ;  posts  3 
feet  above  ground,  4  inches  square  or  diameter  ;  mounds  2 
feet  high. 

4.  Same  as  Colorado,  but  open  cut  must  be  at  least 
6  feet  deep,  4   feet  wide  and   10  feet   in   length  along  the 
lode. 

~>.  Within  60  days  after  date  of  posting,  record 
with  Recorder  of  conveyances,  if  there  be  one,  otherwise 
with  <'lrrk  of  County,  a  copy  of  the  notice  posted,  attach- 
ing thereto  an  affidavit  showing  that  required  location  work 
was  performed. 

NOTE. — By  Sec.  3974  Bellinger  and  Cotton's  Code. 
only  one  claim  by  location,  may  be  hold  upon  each  lead 
or  vein,  by  the  same  person  :  the  discoverer  of  any  new 
lend  or  vein,  not  previously  located  upon,  is  allowed  one 
additional  claim. 

South  Dakota. 

1.  Same  as  Colorado,  adding  length  on  each  side  of 
discovery   and   width   on   each   side  of   lode. 

2.  Before  filing   location   certificate  sink   shaft   suffi- 
cient to  show  a  well  defined  mineral  vein  or  lode,  and  not 
less   than    10  feet   in  depth   on   the   lower  side. 

3.  MARKING  BOUNDARIES. — "Such  surface  boundaries 
shall    be   marked    by   8   substantial    posts,    hewed    or   blazed 
on   the  side  or  sides   facing   the   claim   and   plainly   marked 
with    the   name   of   the   lode   and   the    corner,    end.    or    side 
of  the  claim   that  they  respectively  represent,   and   sunk   in 


68  STATUTORY  REQUIREMENTS. 

the   ground,   to-wit :      One   at   each   corner   and   one   at    the 
center  of  earn  side  line,  and  one  at  each  end  of  the  lode." 

4.  Sjimo    as    Colorado. 

5.  Within   60   days   from   date    of    discovery,    record 
in  office  of  Register  of  Deeds,  a  location  certificate  contain- 
ing same  as   Colorado,  adding  width  claimed   on  each   side 
of    vein. 

Utah. 

1.  At  time  of  making  discovery   erect  a  monument 
and   place  thereon  a  notice  containing  name  of  lode,   name 
of  locator,   date  of  location,  length  each   way  from   discov- 
ery, width  on  each  side  of  the  center  of  the  vein,   general 
course    of   lode    and   description    with    reference    to   natural 
object  or  permanent   monument. 

2.  Regulated  by  district  rules. 

3.  Claims  must  be  distinctly  marked  on  the  ground 
so  that   the  boundaries   can    be   readily   traced.      Details   of 
marking  left   to   District   Rules. 

4.  Regulated   by  District  Rules. 

5.  Within    30   days    from   date   of   posting   the   loca- 
tion  notice,  file  for   record  in   office  of  County   Recorder,    ii 
claim    be   situate    without    and    beyond    an    original    mining 
district,  a  substantial   copy  of  the  notice  of  location. 

6.  Where   a   mining  district   exists   an   original    and 
duplicate  copy  of  the  notice  of  location  are  filed  with   th.> 
District    Recorder,    which    duplicate    the    District    Recorder 
sends  to  the  County  Recorder  to  be  by  him  recorded. 

NOTE. — The  Acts  of  1899,  page  26,  allow  districts  to 
be  organized,  but  provide  that  the  nearest  boundary  line 
of  district  shall  not  be  within  ten  miles  of  the  office  of 
any  County  Recorder. 

Washington. 

1.  Post  at  the  discovery,  at  the  time  of  discovery, 
a    notice    containing    same   as    Colorado. 

2.  Within  90  days  from  date  of   discovery   sink   shaft 
10  feet   deep   from   the   lowest   part   of   the    rim.      This    re- 
quirement   of    shaft    does    not    apply  «to    any    mining    claim 
located  west  of  the  summit  of  the  Cascade  mountains. 

3.  Within   90   days   mark   boundaries   by   substantial 
posts  or  stone  monuments,   bearing  name  of  lode   and  date 
of    location,    at    each    corner    of    claim.      Posts    and    monu- 
ments   not   less   than   3    feet   high ;    posts   not    less    than    4 
inches    in    diameter.      Brush   must    be    cut   away    and    trees 
must  be  blazed  along  lines   of  claim. 

4.  Same  as  Colorado. 

5.  Within  90  days  from  date  of  discovery,  record  in 
office   of  the   Auditor   of   County,   a   notice  containing   same 
as    Colorado    (except    no   specific    requirement    that    it    con- 
tain name  of  lode). 


RECORD.  69 

Wyoming. 

1.  Same  as  Colorado,  adding  name  of  discoverer. 

2.  Within   60   days    from    date   of   discovery   sink    a 
discovery   shaft  10  feet  deep   from   the  lowest   part  of  the 
rim. 

3.  Mark   the  surface   by  six  substantial   monuments 
of  stone  or  posts,  placed  and  marked  same  as  Colorado. 

4.  An  open  cut  10  feet  in  length,  with  face  10  feet 
hitfh,   or  crosscut  or  tunnel   10  feet  long,   cutting   the  vein 
10   feet    below    the   surface,   measured   from    the    bottom    of 
such  tunn  vuh-nt  to  a  discovery  shaft. 

5.  Will) in    on    days    from   date    of   discovery    record 
with    County    Clerk   a   location    certificate    containing   same 
as   Colorado,  adding  width   on   each  side   of   center   of   dis- 
covery   shaft,    and   describing    claim,    if    on    surveyed    land, 
by  such  reference  to  section  or  quarter  section  corners,  as 
shall   identify   the  claim   beyond  question. 


RECORD. 

Essentials  of  Location  Certificate. 

R.  S.  Sec.  2324. — *  *  •  All  records  of  mining- 
claims  hereafter  made  shall  contain  the  name  or  names  of 
the  locators,  the  date  of  the  location,  and  such  a  descrip- 
tion of  the  claim  or  claims  located  by  reference  to  some 
natural  object  or  permanent  monument  as  will  identify  the 
claim.  •  •  •  — Sec.  5,  A.  O.  May  10,  18VZ. 

Colorado  Statute — Time  to  File. 

R.  S.  Tolo.  Sec.  4104. — The  discoverer  of  a  lode 
shall,  within  three  months  from  the  date  of  discovery,  re- 
cord his  claim  in  the  office  of  the  recorder  of  the  county 
in  which  such  lode  is  situated,  by  a  location  certificate 
which  shall  contain : 

First — The   name  of  the   lode. 

Second — The  name  of  the  locator. 

Third — The  date   of  location. 

Fourth — The  number  of  feet  in  length  claimed  on 
each  side  of  the  center  of  discovery  shaft. 

/ 'ifth — The  general  course  of  the  lode  as  near  as 
may  be. — Feb.  IS,  187J. 

Indefinite  Record  Void. 

II.  S.  Colo.  Sec.  4195. — Any  location  certificate  of  a 
lode  claim  which  shall  not  contain  the  name  of  the  lode, 
the  name  of  the  locator,  the  date  of  location,  the  number 
of  lineal  feet  claimed  on  each  side  of  the  discovery  shaft, 
the  general  course  of  the  lode,  and  such  description  as 


70  RECORD. 

shall  identify  the  claim  with  reasonable  certainty,  shall  be 
void.— Id. 

Separate  Record  of  Each  Claim. 

R.  S.  Colo.  Sec.  4196. — No  location  certificate  shall 
claim  more  than  one  location,  whether  the  location  be  made 
by  one  or  several  locators.  And  if  it  purport  to  claim  more 
than  one  location  it  shall  be  absolutely  void,  except  as  to 
the  first  location  therein  described,  and  if  they  are  described 
together,  or  so  that  it  can  not  be  told  which  location  is 
first  described,  the  certificate  shall  be  void  as  to  all. — Id. 

The  Statutory  Requirements  essential  to  a  loca- 
tion certificate  stated  in  section  3150  above  printed 
are  followed  by  similar  but  not  identical  statutes  in 
all  the  mining  States  and  Territories,  except  Cali- 
fornia and  Alaska.  The  statutory  requirements  in 
the  several  States,  in  addition  to  those  above  noted, 
are  tabulated,  page  60. 

Where  no  statutory  requirements  other  than  the 
Federal  Statute  exist,  a  certificate  following  the  form 
below  given  (page  75 »  would  in  any  State  or  Terri- 
tory fully  comply  with  the  requirements  of  the  law. 

The  Nevada  Statute  requiring  the  distance  each 
side  of  the  discovery  and  the  general  course  of  the 
vein  to  be  stated  in  the  location  certificate  was  held 
merely  directory  in  Zerres  v.  Vanina,  134  F.  616. 

So  far  as  such  Statutes  require  a  discovery  shaft 
of  certain  depth  or  any  other  item  of  location  or 
record  in  itself  material,  they  are  only  reasonable 
and  have  uniformly  been  held  mandatory;  but  oppres- 
sive and  trifling  details,  such  as  imposed  by  the  1907 
mining  act  of  Nevada,  and  the  1895  act  of  Montana 
(materially  amended  for  the  better  in  1907)  requir- 
ing "a  description  of  each  corner"  and  the  "dimen- 
sions" of  the  discovery  shaft,  ought  to  be  held  di- 
rectory only  and  non-compliance  not  fatal,  as  was 
ruled  concerning  the  requirement  that  the  record 
give  the  length  each  side  of  the  discovery  and  the 
general  course  of  the  vein,  in  Zerres  v.  Vanina,  134 
F.  616. 

The  Montana  act  of  1895  above  cited  was  held 
mandatory  and  the  attempted  compliance  fatally  de- 
fective in  Purdum  v.  Laddin,  59  P.  153,  and  in  Hahn 


RECORD.  71 

v.  James,  73  P.  965,  but  the  description  in  Walker  v. 
Pcnnin<tt<>n.  IIP.  156.  was  sustained. 

Necessity  for  Record. 

1 1  is  conceded  that  the  Federal  Statute  does  not 
in  terms  require  a  record  to  be  made. — Southern 
Cross  Co.  v.  Europa  Co.  15  Nev.  383;  Haws  v.  Vic- 
''i  U.  S.  SJ8.  And  although  before  the 
mining  acts  a  record  in  some  form  was  almost  uni- 
versally required,  and  although  either  in  terms,  or 
assumedly,  required  in  almost  every  state,  yet  it 
seems  that  the  necessity  for  a  record  must  be  cre- 
ated by  Statute  or  District  rule. 

On  these  grounds  there  have  been  two  decisions 
on  the  construction  of  the  Nevada  law,  holding  in 
terms  that  record  was  not  mandatorily  imposed  by 
the  mining  act  of  that  State.  In  Zerres  v.  Vani,><>. 
i .;;  /  010,  it  was  held  that  failure  to  record  either 
within  the  time  mentioned  in  the  statute  or  at  any 
time,  did  not  avoid  a  discovery  made  complete  by 
discovery  shaft,  notice  and  staking. 

In  Ford  v.  Campbell  92  P.  206,  the  Statute  is 
considered  more  fully  with  the  holding  that  a  rec- 
ord in  Nevada  if  made  at  all  must  be  with  both 
District  and  County  Recorder.  But  that  the  intent 
of  the  Statute  was  merely  to  give  the  locator  the 
benefit  of  a  means  of  making  prima  facie  proof  of 
discovery  and  location  by  production  of  the  record 
and  not  to  defeat  the  location  for  want  of  a  record; 
and  that  the  first  location,  having  a  record  in  only 
one  office,  and  its  description  further  being  fatally 
defective,  was  nevertheless  a  good  and  permanent 
location  without  any  record  at  all. 

Close  as  the  question  may  be  this  construction 
is  defensible  and  affords  an  escape  from  defeat  of 
priority  by  failure  to  comply  with  the  burdensome 
and  almost  impossible  details  required  to  show  in 
the  record,  under  the  act  construed  by  these  deci- 
sions, and  the  even  more  indefensible  act  in  these 
particulars  of  1907,  the  wording  of  which  on  the 


72  RECORD. 

point  of  necessity  of  record,  is  the  same  as  that  of 
the  old  act. 

The  Time  to  Eecord  the  location  certificate  is 
fixed  by  statute  in  Colorado  within  3  months;  North 
and  South  Dakota  and  Wyoming,  60  days;  Alaska 
and  Washington,  90  days  from  date  of  discovery; 

Utah  within  30  days  after  date  of  posting.  Mon- 
tana and  Oregon  60  days  from  such  date.  Nevada 
90  days  from  date  of  posting.  New  Mexico  three 
months  from  such  date.  Arizona  and  Idaho  within 
ninety  days  from  date  of  "location." 

In  California  no  time  is  fixed  by  statute. 

For  proper  office  or  offices  in  which  to  file  the 
location  certificate,  see  Statutory  Requirements  tab- 
ulated on  page  60. 

Where  there  is  no  organized  mining  district,  and 
therefore  no  district  recorder,  the  certificate  should 
always  be  filed  with  the  county  recordei 

Recording  Location  Notice  as  Certificate. 

It  is  a  custom  in  California  and  in  many  local 
districts  elsewhere  to  make  the  location  notice  in  du- 
plicate, placing  one  on  the  claim  and  filing  the  other 
for  record.  The  same  is  the  statutory  regulation  in 
Idaho,  Arizona,  Utah,  Oregon  and  New  Mexico.  The 
location  certificate,  or  record,  everywhere,  must  con- 
tain all  that  is  required  of  the  notice  besides  giving 
a  full  description  which  is  not  required  of  the  notice. 
If,  therefore,  the  custom  be  to  make  these  instru- 
ments duplicates,  each  must  contain  what  is  re- 
quired of  the  greater  and  both  would  have  to  contain 
a  full  description  with  reference  to  monuments,  to 
conform  to  the  Act  of  Congress.  If  not  exact  du- 
plicates it  is  not  fatal. — Gird  v.  California  Co.  60  F. 
531;  18  M.  R.  45. 

Description  in  Location  Notice. 

Unless  expressly  required  by  statute  or  district 
rule,  and  barring  the  above  noted  exception  as  to 
States,  where  the  record  is  a  duplicate  of  the  posted 
notice,  the  location  notice  is  not  supposed  to  call  for 


RECORD.  73 

any  tie  or  to  contain  a  description  of  the  claim. — 
Poujade  v.  Ryan,  38  P.  660;  Souter  v.  Maguire,  21 
P.  18& 

Only  the  items  specifically  commanded  for  it  to 
contain  are  material  and  the  additional  facts  so 
often  recited  in  such  notices  are  harmless  surplus- 
age. 

Filing  for  Record  is  equivalent  to  record,  and 
subsequent  errors  or  neglect  of  the  officer  can  not 
prejudice  the  locator. — Weese  v.  Barker,  7  Colo.  118; 
Shepard  v.  Murphy,  58  P.  588. 

The  Record  Follows  the  Location,  as  the  location 
follows  the  discovery.  The  record  is  a  publication 
of  the  location,  and  is  therefore  called  the  location 
certificate.  Many  of  the  old  forms  of  these  certifi- 
cates are  not  sufficiently  specific  and  the  Surveyor- 
General  in  such  cases  requires  a  new  record  to  be 
made  before  issuing  order  of  survey  upon  applica- 
tion for  patent. 

The  Certificate  as  Proof  of  the  Acts  of  Location. 

See  EJKI  i   ii  M.   p.  349. 

Description  of  Claim — Ties. 

The  record  contains  a  description  of  the  claim 
as  staked  on  the  ground.  If  not  properly  staked  the 
record  does  not  make  a  good  location ;  but  if  the  loca- 
tion has  been  properly  made,  the  certificate  can  read- 
ily be  written  so  as  to  describe  it  fully,  whether 
staked  by  a  surveyor  or  otherwise.  The  essentials  of 
a  valid  location  certificate  are  stated  concisely  in 
sections  4194,  4195  and  4190,  above  printed,  and  a 
form  is  given  below. 

The  discovery  shaft  should  always  be  treated  as 
an  essential  point  of  description,  and  tied  to  some 
near  and  prominent  monument,  with  course  and  dis- 


74 


RECORD. 


I 


1 


RECORD.  75 

tance  therefrom,  because  it  is  a  much  more  perma- 
nent monument  than  any  stake  or  corner. 

In  addition,  one  or  more  corners  should  be  tied 
to  other  natural  objects  or  permanent  monuments, 
a  government  corner  or  discovery  shaft  of  an  ap- 
proved survey  being  unobjectionable. 

The  text  of  the  Statute,  however,  is  complied 
with  by  the  use  of  only  a  single  tie  as  the  words 
"natural  object  or  permanent  monument"  are  used 
in  the  singular  form. 

FORM  OF  LOCATION    .  1:1:1  n  i«  ATI:. 

KNOW   ALL   MI:N    i\\    IHI.M;   rui.sLNTs.  Thai   I.  i;<linund 

11.     I.nnktn,    «•!     tin-    I'ity     and    County     <>f    D,  m  ,  ,  .     Stair    Of 

::i    by    right   of  discovery  and   location,  fift><n 

liuiKind    iVt-t.    linrar    and    horizontal    measuri'inriii,    "n     ilu- 

[HAL    LODBj    RlOOf    tlM    v.-iu    tli«-rroi,    with    all    its    dins, 

•^rllliT     With     nitt.      Itumhttl     <llt<l     flit  It 

in  \\idtli  mi  ta.ii  Mdi-  ni  th«-  iniddir  «.t  >aid  vein  at 
tin-  •orface;  and  ail  reins,  lodes,  ledges,  deports  and  sur- 

-r..und    \\ithin    ih«-    lim-s   of  said   claim;    M  i  <  n    hundred 
ami    fij tit    I'ITI    mi    said    l<»de    ninuiii^    north    88    tit  .<; 
iruiu    tin-    r.-nti-r    ni    tin-   »li>i-«iv»-ry    slial't,   and   -><  i  (  n    liuii<li<<l 
unii  Jin ii   irri    running  .v«n<//i   »   »/«.,,  ir«>iu   said  ceii- 

ihaft 

Said   claim    Is   situate   on    the    east*  in    >/<./><     of   Hull 
Hill     in    i  Minin-     District,    Cdunty     «-i     7'. //</•. 

State  of  Colorado,  and  is  bound,  d  :md  d--.  i  ii..-<l  as  follows, 
to  wit  : 

Ji'ijinnimj    at     oomer     A ".     ;     (northwett     corner    of 

p    >//'//'/    of    .\ianntny    L«<l<     h,  ant   2V. 

I'..    I'j    Jut    ainl    runniinj    tin  n<t   »S.    j  /..    d^O 

lot    in    C0m0r    -\o.    f;    i  tit  n  t-t    A.    «i>    ilfj/n-c*   E.    ?.}(/  /cct    <o 

vsoj</y  llnitfi     .x«///i.     tMNITM     7.>y    /««/     /o    corner 

A".    I;    ///.  /<•  -    A.    2   dtjy/  KX0    feel    fo    corner    Ao.    4 

(nort In  atst    i-ornti->f    JK.IH     n  Itk-h     bliuid    .,  Z   feet    in 

dinmctir  ntni'kt  il     /  \.  8  degrees  W.  22  feet;  thence 

xnntli    M    (/(<//•<<>     ll.     7    '    /<•/     t»     imrth-f*  nt*  r    xtnkt ,    and 

tin  nf»    M  -ft  *o  t/ie  p^ace  of  beyinniny. 

From   dim.'ui-1-rit  shaft,  corner  Ao.  t  of  Newman  Lode, 
\  --.   7tf7,   bears  Af.  45  degrees  E.  280  feet,  and  dis- 
*  y   shaft    of    \\  ixftnan   Lode   bears  8.   45   degrees   W.   275 
feet. 


76  RECORD. 

Date  of  discovery,  January  2,  1908.  Staked  and  lo- 
cated February  4,  1908.  Date  of  certificate,  February  6, 
1908.  EDMUND  H.  LUNKF/N. 

The  above  form  corresponds  in  ties  and  courses 
to  the  diagram  on  page  7Jj. 

Descriptive  Defects  in  Location  Certificate. 

In  addition  to  the  cases  cited  on  page  53,  under 
"LOCATION,"  there  are  certain  other  decisions  in 
particular  requiring  mention  because  of  their  ten- 
dency to  condone  very  vague  records. 

The  most  material  of  these  cases,  because  de- 
cided by  the  Court  of  highest  authority,  is  that  of 
Hammer  v.  Garfleld  Co.  130  U.  8.  291;  16  M.  R.  i 
There,  the  opinion,  after  stating  that  "a  reference  to 
some  natural  object  or  permanent  monument"  is  re- 
quired, says:  "Of  course  the  section  means  when  such 
reference  can  be  made."  And  it  then  proceeds  to  up- 
hold a  record  whose  only  call  or  tie  was  "about  fif- 
teen hundred  feet  south  of  Vaughn's  Little  Jennie 
Mine."  The  opinion  further  treats  the  claim's  own 
stakes  as  sufficient  monuments.  It  was  with  refer- 
ence to  this  case  that  HALLETT  J.  on  objection  being 
made  in  the  Circuit  Court  to  an  indefinite  record, 
overruled  the  objection  with  the  observation  "The 
Supreme  Court  has  repealed  the  Statute  on  this 
point." 

In  Gamer  v.  Glenn,  20  P.  654,  a  "large  bowlder 
at  the  west  end  of  the  Tim  lode"  was  the  starting 
point.  This  was  the  only  monument.  Adjoiners 
were  named,  but  it  was  proved  that  no  such  claim  as 
the  "Tim"  was  known  or  existed.  The  record  was 
maintained.  The  test  applied  in  this  case  was  a  fair 
and  reasonable  one  in  its  terms,  to  wit:  it  must  be  a 
description  which  would  enable  a  person  of  reason- 
able intelligence  to  find  the  claim  and  trace  its 
boundaries.  Cited  and  followed  on  very  similar  rec- 
ord in  Bramlett  v.  Flick,  57  P.  871. 

Hanson  v.  Fletcher,  87  P.  480,  decided  in  terms 
that  the  claim's  own  corners  were  sufficient  monu- 
ments within  the  Act,  treating  them  as  a  complete 
description  without  even  referring  to  the  attempted 


RECORD.  77 

tie  to  another  mine  about  a  mile  distant.  An  equally 
vague  description  was  upheld  on  the  same  lines  in 
Credo  Co.  v.  Highland  Co.  95  F.  911.  Both  these 
decisions  cite  and  follow  the  Garfteld  case,  supra; 
Farmington  Co.  v.  Rhymney  Co.  58  P.  832. 

The  statute  requires  the  location  to  be  "marked 
on  the  ground"  and  also  a  "description  by  reference." 
This  means  and  has  always  been  considered  to  mean 
a  reference  to  an  object  or  monument  distinct  from 
its  own  stakes  or  corners,  but  the  above  citations  go 
far  towards  maintaining  any  record  which  bounds 
itself  by  calling  from  corner  to  corner. 

In  Darger  v.  Le  Sieur,  80  P.  363,  and  Brown  v. 
Lev n  the  location  certificates  were  held 

void  for  indefiniteness;  while  in  Bennett  v.  Hark- 
rader,  158  U.  8.  443,  it  was  held  that  a  location  cer- 
tificate with  practically  no  description  at  all  was 
good.  This  last  case  can  not  be  safely  depended  on 
as  a  precedent  to  be  followed,  as  the  Court  proceeded 
to  pass  finally  on  the  law  by  holding  that  an  Act  of 
Congress  of  1884,  23  Stat.  L.  24,  validated  all  claims 
in  Alaska  prior  to  its  date  without  regard  to  form, 
if  the  claimants  were  in  actual  possession. 

The  record  was  held  fatally  defective  for  failure 
to  state  the  length  and  width  of  the  claim  and  gen- 
.  eral  course  of  the  vein,  as  required  by  Oregon  stat- 
ute.— Sharkey  v.  Candiani,  85  P.  219.  For  failure  to 
call  for  natural  object  or  monument  in  Mutchmor  v. 
McCarty  (Cal.),  87  P.  85.  For  failure  to  give  dimen- 
sions of  discovery  shaft. — Helena  Co.  v.  Baggaley 
(Mont.),  87  P.  J/55,  and  for  failure  to  show  that  the 
lode  was  cut  at  a  depth  of  ten  feet  below  the  surface 
in  Dolan  v.  Passmore  (Mont.),  85  P.  1034.  For  fail- 
ure to  give  the  length  each  way  from  discovery  shaft. 
— Slothower  v.  Hunter  (Wyo.),  88  P.  36.  Descrip- 
tions calling  for  corner  stakes  without  meandering 
the  bounds  were  held  good  in  Bonanza  Co.  v.  Golden 
Head  Co.  29  Utah  159;  80  P.  736. 

A  description  by  the  points  of  the  mariner's  com- 
pass was  maintained  in  Hayden  v.  Brown,  53  P. 
490. 


78  RECORD. 

Rule  of  Construction. 

Location  certificates  are  of  a  class  to  which  a  lib- 
eral, not  a  technical,  rule  of  construction  will  be  ap- 
plied and  any  language  which  will  be  fair  notice 
to  subsequent  prospectors  will  make  a  sufficient  de- 
scription.— Fissure  Co.  v.  Old  Susan  Co.  63  P.  587; 
Morrison  v.  Regan,  67  P.  955;  Wells  v.  Davis,  62 
P.  3;  McCann  v.  McMillan,  Id.  31. 

But  where  the  State  statute  requires  a  description 
more  specific  than  that  implied  from  the  A.  C.  Sec. 
2324,  such  requirements  are  mandatory  and  a  record 
calling  only  for  its  own  corners  is  void. — Purdum  v. 
Laddin,  59  P.  153;  the  same  as  to  any  such  statu- 
tory requirements  prescribing  details  of  location. — 
Copper  Globe  Co.  v.  Allman,  64  P.  1020. 

Tying  to  Location  Monument. 

In  Idaho  there  must  not  only  be  a  description 
by  reference  to  natural  objects  or  permanent  monu- 
ment, but  such  object  must  be  tied  both  by  course 
and  distance  to  the  monument  erected  at  the  point 
of  discovery. — Clear  Water  Co.  v.  San  Garde,  61  P. 
137. 

Surplusage — Misdescription. 

The  addition  of  statements  not  pertinent  or  ma- 
terial does  not  vitiate  the  paper. — Preston  v.  Hunter, 
67  F.  996.  And  where  there  is  a  false  course  or  a 
false  tie,  but  after  discarding  the  misleading  clause 
enough  remains  to  fully  identify  the  claim,  the  rec- 
ord is  valid.  Or  a  mistake  in  course  or  distance  may 
be  corrected  by  a  call  for  a  monument  or  some  ob- 
jective point. — Smith  v.  Neioell,  86  F.  56.  The 
fact  that  the  last  call  fails  to  close  will  not  vitiate 
a  location  certificate  otherwise  regular. — Providence 
Co.  v.  Burke,  57  P.  641. 


RECORD.  79 

Parol  Proof  to  Connect  the  Paper  With  the  Thing 

Described — Ultimate    Question    of    "Location 

Proved"  for  the  Jury. 

Where  the  description  is  uncertain  by  reason 
of  latent  defects — that  is,  where  the  record  has  suf- 
ficient calls,  but  the  Court  can  not  tell  from  in- 
spection whether  such  calls  are  natural  objects  or 
permanent  monuments — if  the  paper  makes  out  a  suf- 
ficient description,  conditioned  that  they  be  such  ob- 
jects or  monuments,  the  certificate  will  be  admitted, 
leaving  the  jury  to  decide  this  as  a  question  of  fact. 
Upton  v.  Larkin,  7  Mont.  449;  Id  M.  R.  404;  O'Donnell 
v.  Glenn,  19  P.  302;  Russell  v.  Chumasero,  4  Mont. 
309;  15  M.  R.  508.  The  sufficiency  of  the  location 
— that  is,  whether  the  facts  proved  show  a  location 
complying  with  the  law  as  the  Court  gives  them  the 
law — is  for  the  decision  of  the  jury. — Flavin  v.  Mat- 
tingly,  19  P.  384;  Fissure  Co.  v.  Old  Susan  Co.  63 
P.  587. 

Whether  certain  monuments  of  a  certain  size 
would  mark  the  boundaries  so  that  they  could  be 
readily  traced,  is  for  the  jury  to  say. — Taylor*  v. 
Middleton,  67  Cal.  656;  15  M.  R 

The  claimant  may  by  parol,  identify  the  objects 
called  for  as  permanent  monuments. — Seidler  v.  Max- 
field,  20  P.  794;  Metcalf  v.  Prcscott.  10  Mont.  283:  JC> 
M.  R.  137.  And  a  government  corner  is  a  good  call, 
although  its  true  position  was  seriously  disputed. — 
Gird  v.  California  Co.  60  F.  531 ;  18  M.  R.  45. 

A  single  tie  to  a  patent  corner  is  sufficient.  Car- 
lin  v.  Freeman.  75  P.  26.  So  is  a  tie  to  a  single 
stake.  Mclntosh  v.  Price,  121  F.  716. 

The  description  of  a  placer  claim  by  its  number 
as  one  of  a  tier  of  claims  was  held  good  in  Smith 
v.  Cascaden,  148  F.  792. 

The  Test  of  Sufficiency. 

On  the  same  line  as  the  above  case  of  Gamer  v. 
Glenn,  and  stating  the  converse  of  the  proposition, 
the  party  attacking  the  certificate  may  show  that  a 
person  could  not  find  the  premises,  taking  the  loca- 


80          .  RECORD. 

tion   certificate   for   a   guide. — Dillon   v.   Bayliss,    27 
P.  725;  Londonderry  Co.  v.  United  Co.  88  P.  455. 

The  A.  C.  requires  the  date  of  location  to  be 
given,  but  the  locator  is  not  estopped  to  correct  a 
mistake  in  the  date. — We&&  v.  Carlson,  88  P.  998. 

Contradicting. 

A  location  certificate  regular  on  its  face  may  be 
shown  by  parol  to  be  false  in  what  it  calls  for. — 
Dillon  v.  Bayliss,  27  P.  725.  Its  recited  dates  may 
be  proved  not  true. — Muldoon  v.  Brown,  59  P. 
The  same  case  holds  that  the  misdating  must  be 
pleaded.  But  that  is  not  only  to  require  a  party  to 
plead  his  evidence  but  to  anticipate  his  adversary's 
case. 

The  locator  is  estopped  to  deny  the  validity  of 
his  discovery  or  location  as  against  his  grantee. — 
Blake  v.  Thome,  16  P.  270;  McCarthy  v.  Speed,  80 
N.  W.  135. 

Overlapping  Stakes. 

Where  a  fractional  claim  was  located  by  stakes 
all  set  on  or  near  the  lines  of  the  surrounding  claims, 
the  staking  was  upheld. — West  Granite  Co.  v.  Gran- 
ite Co.  17  P.  547.  And  the  same  where,  through 
locating  in  the  night  the  stakes  overset  on  the  ad- 
joiner.— Doe  v.  Tyley,  14  P.  375. 

Immaterial  Calls. 

The  statute  does  not  require  the  certificate  to 
state  the  distance  from  the  discovery  shaft  to  the 
side  lines.— Quimby  v.  Boyd,  8  Colo.  194. 

Wrong  County. 

Where  the  record  is  made  in  the  right  county 
but  a  wrong  county  is  called  for  in  the  description 
the  error  is  not  fatal. — Metcalf  v.  Prescott,  16  M.  R. 
137.  Like  ruling  where  the  record  failed  to  name 
county  or  State. — Talmadge  v.  St.  John,  62  P.  79; 
Carter  v.  Bacigalupi,  23  P.  363. 


RECORD.  81 

Verification. 

Idaho,  Montana  and  Oregon  require  the  location 
certificate  to  be  verified,  and  it  has  been  decided 
that  such  requirement  is  legitimate  State  legislation 
under  R.  S.,  Sec.  2322.— Fan  Buren  v.  McKinley,  66 
P.  956;  Wright  v.  Lyons,  77  P.  81.  The  rulings  on 
the  Montana  Act  have  been  severe,  if  not  extreme. 
— McCowan  v.  McLay,  40  P.  602;  Berg  v.  Koegel,  Id. 
605;  Hickey  v.  Anaconda  Co.  81  P.  806.  But  a  verifi- 
cation made  on  information  was  sustained  in  Mares 
v.  Dillon,  75  P.  963. 

Priority  of  Record  is  so  generally  involved  with 
questions  of  priority  of  location  and  of  continued 
possession  that  this  point  has  in  most  cases  less 
weight  than  is  generally  supposed.  Record  is  the 
inception  of  the  written  title,  but  the  actual  title 
of  a  mining  claim,  properly  followed  up,  reaches 
back  to  the  discovery. 

But  if  a  discovery  be  not  followed  by  a  location 
and  record  within  the  time  fixed  by  the  statute,  "an 
intervening  record  becomes  the  prior  title.  In  other 
words,  the  rights  acquired  by  discovery  are  forfeited 
by  neglect  to  perfect  the  title  by  location  and  record; 
and  that  title  which  if  properly  followed  up  would 
have  dated  from  discovery,  will,  if  it  be  not  so  fol- 
lowed up,  be  suspended  in  favor  of  any  valid  record 
made  after  the  expiration  of  a  reasonable  time,  or 
the  period  fixed  by  statute,  and  before  any  record  of 
such  prior  discovery. 

Or  a  record  filed  before  the  statutory  period  nas 
expired,  although  based  on  a  junior  discovery,  be- 
comes the  senior  title  the  moment  the  time  allowed 
to  the  first  discovery  to  complete  its  record  has 
elapsed  without  such  record  being  consummated. 

The  same  rule  applies  to  any  senior  locator  who 
allows  the  time  allowed  for  sinking  his  discovery 
shaft,  to  expire  before  he  has  readied  the  required 
depth  and  found  the  required  crevice. 


82  RECORD. 

Possession  Without  Valid  Location  or  Record. 

The  cases  upon  this  point  require  careful  ex- 
amination to  ascertain  the  distinctions  made  and 
even  after  such  examination  manifest  inconsistencies 
appear. 

One  series  of  cases  states  that  where  a  party  is 
in  actual  possession  no  stranger  can  invade  such  pos- 
session in  order  to  initiate  an  adverse  title;  in  other 
words,  a  prospector  can  not  go  upon  the  claim  how- 
ever invalid  or  defective,  to  sink  a  discovery,  set  up 
a  notice  or  plant  stakes. — Phoenix  Co.  v.  Lawrence,  55 
Cal.  143;  12  M.  R.  261;  North  Noonday  Co.  v.  Orient 
Co.,  1  F.  522;  9  M.  R.  524;  Weese  v.  Barker,  7  Colo. 
178;  Craig  v.  Thompson,  10  Colo.  517;  Rush  v. 
French,  25  P.  816. 

Certain  of  these  cases  hold  that  he  may  not  in- 
vade the  actual  workings  then  or  lately  occupied. — 
Faxon  v.  Barnard,  2  McCr.  44;  9  M.  R.  516.  Others 
hold  that  he  may  not  enter  within  the  lines  of  the 
claim. — Eilers  v.  Boatman,  3  Utah,  159;  15  M.  R.  462. 

Some  of  the  above  citations  can  be  justified, 
within  certain  limits,  on  the  principle  of  preserving 
the  peace  on  the  public  domain.  But  their  logical 
result,  if  taken  without  qualification,  would  be  that 
a  party  in  possession  could  hold  by  his  possession 
alone,  in  disregard  of  all  the  requirements  of  the 
State  Statute  and  of  the  Act  of  Congress. 

On  the  other  hand  there  are  many  decisions  to 
the  effect  that  a  party,  after  the  lapse  of  the  statutory 
time  to  complete  location  and  record,  can  not  hold 
against  a  claim  later  in  discovery  but  which  has  been 
the  first  to  complete  a  valid  location  and  record  under 
the  Statute — that  a  miner  can  hold  his  claim  only  by 
compliance  with  the  regulations  prescribed  by  the 
owner  of  the  fee  (the  United  States)  and  the  State 
or  district  regulations  which  such  owner  has  author- 
ized.— McKinstry  v.  Clark,  4  Mont.  395;  Noyes  v. 
Black,  Id.  527;  Horswell  v.  Ruiz,  67  Cal.  Ill;  15  M. 
R.  488;  Garfteld  Co.  v.  Hammer,  8  P.  153;  Glee- 
son  v.  Martin  White  Co.  13  Nev.  442;  9  M.  R.  435; 
Sweet  v.  Webber,  7  Colo.  44^;  Lalande  v.  McDonald, 


RECORD.  83 

IS  P.  349;  DuPrat  v.  James,  65  Cal.  555;  15  M.  R. 

941. 

The  Supreme  Court  of  Montana  said:  "Such  lo- 
cation is  a  condition  precedent  to  the  grant.  Mere 
possession  not  based  upon  a  valid  location  would  not 
prevent  a  valid  location  under  the  law." — Belk  v. 
Meagher,  3  Mont.  65;  1  M.  R.  534;  and  the  decision 
was  affirmed  by  the  Federal  Supreme  Court  on  the 
same  lines.— 104  U.  S.  279;  1  M.  R.  510. 

First  Complete  Location — One  Party  in  Default. 

The  first  in  time  to  comply  with  all  the  require- 
ments, after  allowing  to  the  one  who  takes  the  first 
step  to  initiate  a  title  his  reasonable  or  his  statutory 
time  to  complete  the  same  is  the  first  in  law. 

If  the  first  discoverer  fail  to  sink  his  shaft 
within  the  statutory  period,  or  to  stake  or  record 
within  the  time  fixed  by  law  (or  within  a  reasonable 
tinio  where  there  is  no  Statute),  and  a  second  party 
makes  a  discovery  while  the  first  party  is  in  default, 
such  second  party  has  the  statutory  time  to  complete 
his  location  and  record  and  will  hold  the  ground 
against  the  original  discoverer,  although  such  orig- 
inal discoverer  perfects  his  location  and  record  before 
the  location  on  the  second  discovery  is  complete. 

We   think   the    language   of   the    two   preceding 
paragraphs   is  justified   by  the  language  of  the   Su- 
preme Court  in  Lockhart  v.  Johnson,  181  U.  8. 
and  many  other  cases. — Copper  Co.  v.  Allman,  64  P. 
1020;  Gregory  v.  Pershbaker,  73  Cal.  109;  15  M.  R. 

:  Patterson  v.  Hitchcock,  3  Colo.  533;  5  M.  R.  r> ',  i ; 
Thallman  v.  Thomas,  111  F.  277. 

Entry  During  Discoverer's  Locating  Time. 

The  Golden  Bell  lode  was  first  discovered,  put  up 
its  notice,  sunk  its  shaft  in  due  time,  but  did  not  re- 
cord until  the  three  months  had  expired.  The  Verde 
had  made  a  discovery  during  the  sixty  days  allowed 
to  sink  the  Golden  Bell  shaft,  making  such  discovery 
beyond  the  distance  claimed  by  the  Golden  Bell  no- 
tice. After  the  three  months  allowed  to  the  Golden 
Bell  had  expired,  and  when  the  Golden  Bell  was  in 


84  RECORD. 

default  but  the  Verde  within  its  time,  the  Verde  made 
its  survey — by  such  survey  taking  up  ground  cov- 
ered by  the  Golden  Bell  notice.  The  court  held  that 
the  Verde,  though  its  discovery  shaft  was  sunk  on 
clear  ground,  was  a  title  initiated  by  trespass  and 
could  not  be  made  the  basis  of  a  claim  to  survey 
over  the  Golden  Bell  territory. — Omar  v.  Soper,  11 
Colo.  380. 

The  Jessie  Mac  posted  its  location  notice  on  June 
30,  1899,  but  failed  to  complete  its  location.  The 
Cripple  Creek  posted  its  location  notice  within  the 
feet  claimed  by  the  Jessie  Mac  on  the  59th  day  there- 
after. Held:  that  the  first  posted  notice  was  an 
appropriation  of  ground  claimed  by  it,  and  that  no 
title  could  become  initiate  during  the  60  days  allowed 
to  sink  discovery,  and  that,  therefore,  the  failure  of 
the  Jessie  Mac  to  complete  its  location  within  the 
statutory  time  could  not  avail  to  make  good  the 
Cripple  Creek  location. — Sierra  Blanca  M.  Co.  v. 
Winchell,  83  P.  628.  (Colo.) 

With  the  doctrine  that  a  notice  is  a  complete 
appropriation  of  the  ground  so  as  to  make  the  entry 
of  a  second  prospector  within  its  area  a  trespasser, 
we  can  not  for  one  moment  agree,  (1)  because  it  is 
carrying  the  idea  of  trespass  beyond  the  reason  on 
which  it  is  based;  (2)  because  it  operates  unjustly 
against  later  but  more  diligent  prospectors,  and  (3) 
because  the  weight  of  authority  is  against  it. 

1.  The  assertion  that  it  is  a  trespass  at  all  is 
not    true,    because   there    is    no    possession    invaded. 
Nash  v.  McNamara,  93  P.  405. 

2.  It  is  indefensible  that  a  mere  notice  of  in- 
tention to  locate,  which  intention  the  party  stating 
it  is  not  bound  to  make  good,  should  bar  other  pros- 
pectors from  the  right  to  search  for  mineral  on  the 
assumption  that  the  intention  will  be  carried  out. 

The  second  prospector  takes  the  chances  of  the 
notice  being  perfected  into  a  complete  location,  and 
if  it  is  he  must  yield  to  the  now  perfected  prior 
right;  but  if  the  second  party  completes  his  location 
and  the  first  never  does,  we  can  see  no  reason  why 
it  should  be  said  that  he  has  a  tainted  title.  If  these 


RECORD.  85 

last  cases  cited  are  law  the  party  who  thus  failed  to 
perfect  his  location  could  wait  for  years  and  until 
the  first  complete  location  had  been  developed  into  a 
valuable  mine,  then  make  his  record  and  take  the 
ground.  For  if  a  location  is  initiated  by  trespass  it 
never  ripens  into  a  good  title  short  at  least  of  the 
period  of  the  Statute  of  Limitations. 

3.  The  exact  point  is  discussed  and  decided  as 
we  claim  that  it  should  be  in  Helena  M.  Co.  v.  Bagga- 
ley,  34  Mont  ;md  in  the  Nash  case, 

supra. 

In  their  opinion  the  Supreme  Court  of  Montana 
hold:  That  where  a  second  discoverer  enters  on  the 
ground  within  the  area  covered,  by  a  notice  lately 
posted  and  within  its  lifetime,  but  the  first  discov- 
erer fails  to  perfect  his  location  in  due  time  and  the 
second  does  so  perfect,  the  second  party  holds  the 
ground. 

No  exact  rule  can  be  laid  down  to  meet  every 
variation  in  which  the  question  could  present  itself, 
but  after  conceding  that  a  man's  actual  occupation  of 
his  workings  may  not  be  invaded,  and  that  a  drift 
would  amount  to  such  actual  occupation  of  the  vein 
for  the  length  of  such  drift  upon  the  vein  above  and 
below;  and  that  an  adverse  entry  would  not  be  al- 
lowed so  near  to,  although  not  actually  upon,  the 
workings  of  the  prior  party  as  to  threaten  to  provoke 
a  breach  of  the  peace — it  would  seem  that  after  such 
concessions,  the  first  party  having  made  no  record, 
or  no  location  certificate  amounting  to  a  valid  record, 
or  having  otherwise  failed  in  any  essential  point 
necessary  to  constitute  a  valid  location,  the  ground 
would  be  open  to  the  location  and  record  of  a  valid 
claim  thereon. — Lockhart  v.  Wills,  54  P.  336. 

Record  Complete  Before  Adverse  Rights  Initiated. 
Notwithstanding  delay  to  record  or  delay  to  sink 
discovery  or  to  set  stakes  or  to  find  a  well-defined 
crevice  or  to  do  any  other  essential  act  of  location,  it 
has  been  repeatedly  and  in  many  forms  held  that  if 
at  length  the  record  or  location  be  in  fact  perfected 
before  the  hostile  title  had  its  inception,  that  the 


86  RECORD. 

title  to  such  delayed  but  finally  completed  location  is 
perfect  as  against  any  later  initiated  title,  and  that 
the  last  act  of  location  relates  back  to  and  the  title 
begins  from  the  original  date  of  discovery. — McOinnis 
v.  Egbert,  8  Colo.  41;  15  M.  R.  829;  Preston  v.  Hun- 
ter, 67  F.  996. 

All  Parties  in  Default. 

In  the  suit  between  the  Green  Mountain  and  the 
Ontario  it  appeared  that  the  Green  Mountain  was  dis- 
covered in  August,  1877,  and  recorded  in  March,  1878. 
The  Ontario  was  discovered  in  February  and  recorded 
in  July,  1878.  Each  had  exceeded  the  three  months 
allowed  by  law  to  record  and  the  priority  in  title  (as 
to  this  point)  was  given  to  the  first  discovery.  It 
seems  that  it  would  have  been  otherwise  if  the  On- 
tario, although  a  later  discovery,  had  completed  its 
record  within  the  three  months. — Faxon  v.  Barnard, 
2  McCr.  44;  9  M.  R.  515. 

The  Green  Mountain  had  both  first  discovery  and 
first  record,  but  with  a  long  interval  between.  Dur- 
ing its  delay  a  second  discovery  had  intervened,  but 
it  also  over-stepped  the  statutory  time  and  so  allowed 
the  Green  Mountain  to  secure  the  first  record.  This 
case  has  been  lately  approved  in  Lockhart  v.  Johnson, 
181  U.  8.  527.  We  have  always  contended  that  where 
all  parties  are  in  default  in  completing  their  location 
and  record  within  the  statutory  periods  that  the  first 
record  based  upon  a  valid  discovery  and  location  be- 
comes a  perfected  title  and  takes  the  ground  without 
regard  to  priority  of  discovery. — Copper  Co.  v.  All- 
man,  64  P.  1020. 

Possession  During  Locating  Period. 

The  possession  of  the  prospector  during  the  pe- 
riod allowed  by  law  to  complete  his  location  and 
record  is  protected,  although  he  has  so  far  no  paper 
title.— Erhardt  v.  Boaro,  113  U.  8.  521;  15  M.  R.  472; 
Marshall  v.  Barney  Peak  Co.  47  N.  W.  290.  His  loca- 
tion certificate  when  recorded  relates  back  to  the  date 
of  his  discovery. 

And  no  party  can  intrude  within  his  lines  marked 
out  or  within  the  ground  which  he  has  a  right  to 


RECORD.  87 

cover  during  that  period  —  limited  to  750  feet  on  each 
end  of  his  discovery,  unless  his  location  notice  (page 
36)  fixes  the  number  of  feet  claimed  each  way.  — 
Itramlctt  v.  riirJc,  11  P.  869. 


Possession  After  Such  Period  Elapsed. 

Possession,  at  all  times,  without  regard  to  record, 
location  or  even  the  fee  simple,  still  gives  a  certain 
title  as  against  a  mere  trespasser,  upon  which  eject- 
ment and  other  actions  may  be  maintained.  —  Camp- 
bell v.  Rankin,  99.  U.  8.  261;  12  M.  R.  257;  Hawxhurst 
v.  Lander,  28  Cal.  231;  12  M.  R.  214;  Haws  v.  Victoria 
Co.  160  U.  8.  303.  Long  continued  possession  pre- 
sumes ownership.  —  Risch  v.  Wiseman,  59  P.  1111. 
But  as  we  have  already  intimated,  such  right  by 
possession  yields  place  at  once  to  right  by  title,  when 
such  title  is  offered  and  proved.  —  Wilson  v.  Triumph 
Co.  56  P.  301.  It  requires  location  to  give  the  right 
of  possession.  —  Jordan  v.  Duke,  36  P.  896.  See 
"Eji< 

Possession  is  a  title  only  by  sufferance  in  default 
of  something  better  —  it  is  the  starting  point,  not  the 
goal  of  title  —  and  will  not  prevail  against  the  fee 
simple;  Courchaine  v.  Bullion  Co.  4  Nev.  369;  12  M. 
/.'.  ..'.?o;  or  against  a  title  perfected  under  the  district 
rules;  English  v.  Johnson,  17  Cal.  107;  12  M.  R. 
or  against  a  complete  location  and  record  made  in 
compliance  with  the  law.  —  Sears  v.  Taylor,  4  Colo. 
•  38;  5  M.  R.  318.  Where  neither  party  perfects  a  valid 
location  the  first  in  possession  has  the  better  right. 
—  Neuebaumer  v.  Woodman,  26  P.  900. 

Where  a  placer  locator  has  no  discovery  he  has 
no  actual  bona  fide  possession  and  the  ground  is  open 
to  peaceable  entry  by  others.  —  Miller  v.  Chrisman,  73 
P.  1083. 

Trespass  —  Force  —  Fraud. 

No  right  can  be  initiated  on  government  land  by 
force,  fraud  or  clandestine  entry  upon  the  actual  pos- 
session of  another,  whether  the  location  of  such  other 
be  valid  or  invalid.  —  Nevada  Co.  v.  Home  Co.  98  F. 
t:t  /.  Title  to  a  mining  claim  can  not  be  initiated  by 
an  entry  upon  a  prior  valid  existing  location.  —  Kirk 


88  RECORD. 

v.  Meldrum,  65  P.  634.  But  the  possession  of  the 
first  occupant,  where  he  has  no  valid  location,  does 
not  prevent  an  entry  by  a  later  party  intending  to 
make  a  location. — Thallmann  v.  Thomas,  111  F.  277; 
Walsh  v.  Henry,  28  P.  449. 

A  pretended  relocation  by  marking  the  stakes  of 
the  first  locator  and  adopting  his  lines  in  the  certifi- 
cate, the  first  locator  being  in  no  default,  is  void. — 
Moffatt  v.  Blue  River  Co.  80  P.  189. 

Defective  Record  Aided  by  Possession. 

In  Eaton  v.  Norris,  63  P.  856,  the  Court  consid- 
ered both  the  fact  of  continued  possession  and  the 
fact  that  the  intruders  had  admitted  knowledge  of 
the  prior  claim — as  matters  of  evidence  to  aid  the 
older  title.  These  dicta  were  wholly  unnecessary  to 
the  decision,  as  the  prior  locators  had  substantial 
proof  of  location  without  these  incidents.  In  Tal- 
madge  v.  St.  John,  62  P.  79,  a  description  calling 
only  for  its  own  corners  was  held  valid  by  the  aid  of 
such  possession.  But  in  Brown  v.  Oregon  Co.  110  F. 
728,  it  is  held  in  terms  that  if  the  prior  location  is 
not  valid  the  later  comer  may  locate  though  with  full 
notice  of  the  prior  asserted  claim. 

In  general  terms,  the  first  who  complies  with  the 
law  in  completing  his  location  is  the  first  in  right 
and  this  complaisant  recognition  of  priority  on  the 
ground,  and  of  void  notices,  as  tending  to  raise  a* 
supposed  equity,  is  simply  judicial  weakness,  leading 
only  to  uncertainty  and  injustice.  The  Oregon  Co. 
case  boldly  states  the  law  as  it  should  be  stated.  As 
between  two  prospectors,  the  fact  that  one  is  the 
first  comer  or  the  fact  that  the  second  knew  that  the 
first  was  on  the  ground  before  him,  does  not  weaken 
the  rights  of  the  second  comer  if  he  be  the  first  to 
comply  with  the  law — the  common  protector  of  the 
rights  of  both. 

The  extent  of  the  indulgence  legally  to  be  al- 
lowed to  the  prior  locator  is  to  view  his  evidence  "in 
the  most  favorable  light  such  evidence  will  reason- 
ably justify." — Ambergris  M.  Co.  v.  Day,  85  P.  110. 


ABANDONMENT.  89 

Extensions. 

The  paragraph  from  section  2320,  quoted  on 
page  23,  of  itself  disposes  of  all  "extensions"  and 
side  claims,  unless  they  be  of  themselves,  howsoever 
named,  independent  discoveries  and  locations.  "Ex- 
tension" is  a  word  often  added  to  the  name  proper 
of  a  location  staked  off  to  the  right  or  left  of  some 
developed  vein,  suggestive  of  the  hope,  if  not  the 
fact,  that  the  new  location  is  planted  on  the  same  ore 
body  on  its  strike. 

Lode  Location  Held  Good  as  Placer. 

Where  a  party  had  located  a  claim,  not  describ- 
ing it  as  a  lode,  but  of  the  length  and  width  of  a  lode 
claim  upon  a  deposit  usually  classed  as  placer,  the 
Court  held  that  placers  and  lodes  are  taken  up  by 
substantially  the  same  procedure  and  that  if  what 
was  done  made  it  a  valid  mining  location  it  would  be 
sustained  as  a  placer. — McCann  v.  McMillan,  62  P. 
SI.  But  a  placer  location  on  a  metallic  vein  was  held 
void  in  Buffalo  Co.  v.  Crump,  70  Ark.  525;  22  M.  R. 
276. 


ABANDONMENT. 

District  and  Territorial  Regulations. 

The  district  regulations  in  early  years  often  de- 
clared what  acts  or  omissions  should  amount  to  an 
abandonment.  Failure  to  represent  or  work  for  a 
single  season  or  even  for  a  very  limited  period  was 
usually  sufficient  cause.  As  a  camp  became  more  or 
less  deserted  the  miners  about  to  leave  frequently 
met  and  passed  resolutions  to  the  other  extreme — 
that  all  claims  should  remain  valid  without  any  work 
or  representation. 

Where  the  district  organizations  are  still  pre- 
served a  rule  covering  or  attempting  to  cover  this 
point  may  remain  valid  and  enforceable  except  that 
a  rule  requiring  less  than  $100  annual  labor  would 
be  an  infringement  upon  the  Congressional  Act. — 


90  ABANDONMENT. 

Original  Co.  v.  Winthrop  Co.  60  Cal.  631;  Northmore 
v.  Simmons,  97  F.  386. 

The  legislatures  have  not  attempted  the  danger- 
ous matter  of  defining  in  terms  what  amounts  to 
abandonment.  The  circumstances  surrounding  each 
particular  case  vary  too  much  to  make  a  sweeping 
rule  in  all  instances  fair. 

Confined  to   Possessory  Titles — Associated   With 
Annual  Labor. 

Although  the  title  to  mining  claims  has  been  at 
all  times  of  that  class  which  might  be  lost  by  aban- 
donment (Ferris  v.  Coover,  10  Cal.  631),  and  although 
a  technical  abandonment  may  at  this  day  be  proved 
as  to  any  sort  of  possessory  title,  the  subject  has  lost 
much  of  its  importance  except  in  connection  with  the 
annual  labor  acts. 

Abandonment  Is  a  Question  of  Fact,  and  the  fact 
is  to  be  found  from  the  intention. — Myers  v.  Spooner, 
55  Cal.  257;  9  M.  R.  519;  Taylor  v.  Middleton,  67  Cal. 
656;  15  M.  R.  28 Jt;  Mallett  v.  Uncle  Sam  Co.  1  Nev. 
1S8;  1  M.  R.  17;  Oreamuno  v.  Uncle  Sam  Co.  1  Nev. 
215;  1  M.  R.  32;  Marshall  v.  Harney  Peak  Co.  tf  N. 
W.  290.  It  is  a  question  of  fact  for  the  jury. — Aye  v. 
Philadelphia  Co.  44  Atl.  555.  Desertion  and  abandon- 
ment are  equivalent  terms. — Derry  v.  Ross,  5  Colo. 
295;  1  M.  R.  1. 

Abandonment  being  thus  a  matter  of  intention, 
it  follows  that  even  after  doing  his  work  if  the  miner 
should  deliberately  quit  his  claim  with  expression  of 
his  intention  to  never  return  to  it,  or  give  permission 
to  others  to  occupy  it  as  their  own,  such  manifest 
proof  of  intent  would  establish  abandonment;  but 
in  most  cases  the  failure  to  do  the  annual  labor  is 
the  fact  upon  which  the  issue  is  predicated  and  the 
law  of  annual  labor  involves  no  question  of  intent. — 
Depuy  v.  'Williams,  5  M.  R.  251;  Doherty  v.  Morris, 
11  Colo.  12. 

Ceasing  to  work  because  ore  not  salable  is  no 
abandonment. — Hosford  v.  Metcalf,  84  N.  W.  1054- 


ABANDONMENT.  91 

In  McCann  v.  McMillan,  21  M.  R.  6,  the  owner  of 
a  claim,  on  the  last  day  but  one  for  doing  his  annual 
labor  proclaimed  the  claim  abandoned  and  at  once 
went  through  the  form  of  relocating  it  in  the  name 
of  a  third  party.  On  the  first  day  of  January  it  was 
relocated  by  the  plaintiffs.  The  Court  held  that  the 
pretended  relocation  of  December  30  was  void  be- 
cMiise  there  was  in  fact  no  abandonment.  The  de- 
cision was  clearly  right  because  the  whole  affair  was 
a  collusive  proceeding:  the  defendant  did  not  intend 
to  abandon  but  to  hold  in  the  name  of  a  friend.  But 
if  a  third  party  not  in  collusion  with  the  first  owner 
had  located  on  December  31  it  could  have  been  read- 
ily held  that  the  abandonment  was  complete  although 
the  friendly  relocation  attempted  in  connection  with 
it  was  void. 

A  father  failed  to  do  the  work  In  1890.  His  son 
re-located  in  1891  and  afterwards  conveyed  to  the 
father.  The  location  of  1891  was  defective.  In  a 
suit  by  the  owner  of  a  later  location.  Held:  that  de- 
fendant, the  father,  could  not  recall  his  abandon- 
ment and  rely  on  his  original  title. — Niles  v.  Kennan, 
ii',  r 

Abandonment  and  Forfeiture  Distinguished. 

These  two  terms  are  often  used  indiscriminately, 
but  there  is  a  clear  distinction  between  them.  Aban- 
donment is  the  act  and  forfeiture  is  the  consequence. 
It  requires  only  one  party  to  abandon;  it  requires  at 
least  two  parties  to  work  a  forfeiture.  If  the  owner 
of  a  claim  quits  work  and  leaves  the  country,  in- 
tending never  to  return,  leaving  no  agent  to  repre- 
sent his  property,  it  would  be  a  typical  case  of  aban- 
donment. But  if  at  a  later  period  he  returns  and 
resumes  work  his  title  would  not  have  been  lost — he 
would  not  be  required  to  relocate — if  no  second  party 
had  in  the  meantime  attempted  to  locate  the  claim. 
There  has  been  in  such  case  an  abandonment  but 
no  forfeiture,  and  no  second  party  having  acquired 
rights,  the  intent  to  abandon  has  been  a  mere  matter 
of  sentiment. 


92  ABANDONMENT. 

On  the  other  hand  the  intention  to  abandon  be- 
comes immaterial  in  two  classes  of  cases  where  it 
may  be  said  there  has  been  no  abandonment,  but 
there  is  a  forfeiture. 

1.  Where  a  lessee  is  under  covenant,  or  an  owner 
is  under  a  legal   duty  to  do  a  certain  thing;    if  he 
neglects   to   do   it   his   rights   are    forfeited    without 
regard  to  his  intention  as  soon  as  the  lessor  elects 
to  declare  the  forfeiture,  or  in  the  case  of  an  unpat- 
ented  mining  claim  when  a  second  party  makes  his 
relocation.       Parish      Fork      Co.      v.      Bridgewater 
Co.  51  W.  Va.  583;  22  M.  R.  145;  McKay  v.  McDougal, 
64  P.  669. 

2.  Where  the  conduct  of  the  party  is  such  that 
abandonment  is  a  necessary  conclusion  notwithstand- 
ing the  want,  or  a  party's  denial,  of  his  intention. 
Trevaskis  v.  Peard,  18  M.  R.  S58;  44  Pac.  246;  N.  A. 
Expl.  Co.  v.  Adams,  104  F.  404. 

Quitting  to  Lure. 

Such  a  thing  as  a  conditional  abandonment  can 
not  be  recognized.  Where  the  owner  allows  strangers 
to  hold  a  claim  under  color  of  title,  standing  by 
and  intending  to  resume  work  only  in  case  its  de- 
velopment shows  pay,  his  action  amounts  to  aban- 
donment.— Trevaskis  v.  Peard,  44  P.  246. 

How  Proved. 

Lapse  of  time,  though  not  conclusive,  is  an  in- 
cident tending  to  prove  abandonment. — Mallett  v. 
Uncle  8am  Co.  1  Nev.  188;  1  M.  R.  17;  Beaver  Co.  v. 
St.  Vrain  Co.  6  Colo.  App.  180.  Leaving  tools  in  the 
mine  tends  to  disprove  it. — Harkness  v.  Burton,  89 
la.  101;  9  M.  R.  818.  Proof  that  a  stranger  had  re- 
located ground  as  abandoned  does  not  prove  that  it 
was  in  such  condition. — McOinnis  v.  Egbert,  8  Colo. 
41;  15  M.  R.  829. 

Where  the  owners  of  a  three-fourths  interest  in 
a  claim  permitted  J.  to  enter  and  relocate  it  as  a 
new  claim,  this  was  an  abandonment  as  to  such 
three-fourths  interest,  but  did  not  bind  the  owner  of 
the  remaining  fourth.  But  such  owner  subsequently 


ABANDONMENT.  93 

assenting  the  abandonment  became  complete  and  the 
new  location  was  not  to  be  considered  as  a  claim 
initiated  by  trespass. — Conn  v.  Oberto,  76  P.  S69; 
Oberto  v.  FjtiitJi.  S6  P.  86. 

Of  Prospect  Before  Record. 

Where  a  discoverer  by  conduct  shows  an  intent 
to  quit  and  not  perfect  his  location  begun,  the  claim 
is  abandoned  and  strangers  need  not  await  the  ex- 
piration of  the  prospector's  time  before  locating. — 
Kinney  v.  Fleming,  56  P.  723. 

Ditches  and  Water. 

Failure  to  use  water  and  allowing  ditch  to  go  to 
decay  are  evidence  tending  to  prove  abandonment. — 
Dorr  v.  Hammond.  7  Colo.  79;  Sieber  v.  Frink,  7 
Colo.  JJf9.  But  non-user  alone  does  not  of  itself 
necessarily  imply  abandonment. — Welch  v.  Garrett, 
51  P.  .'fO-j;  Integral  Co.  v.  Altoona  Co.  75  F.  379;  N.  A. 
Co.  v.  Adams,  10.'t  F.  404.  A  ditch  may  be  abandoned 
without  the  abandonment  of  the  owner's  water 
rights.— Nichols  v.  Mclntosh,  19  Colo.  22;  Wood  v. 
Etiwanda  Co.  81  P.  ~>  I .'. 

Other  Subjects  of  Abandonment. 

A  leasehold  interest,  water,  slag  and  tailings,  are 
things  which  may  be  lost  by  abandonment. — Qlasgow 
v.  Chartiers  Co.  25  Atl.  232;  Barker  v.  Dale,  3  Pgh. 
r.»>;  8  M.  R.  597;  Dougherty  v.  Creary,  30  Cal.  290; 
1  M.  R.  35;  McOoon  v.  Ankeny,  11  III.  558;  1  M.  R.  9; 
Porter  v.  Noyes,  10'  N.  W.  77.  A  prospecting  contract 
may  be  abandoned. — Chadbourne  v.  Davis,  9  Colo. 
581;  15  M.  R.  620;  McLaughlin  v.  Thompson,  2 
Crto.  App.  135.  And  failure  to  supply  his  outfit  to 
the  prospector  will  justify  abandonment. — Hurley  v. 
Ennis,  2  Colo.  300;  12  M.  R.  360. 

All  improvements  found  on  abandoned  claims 
belong  to  the  relocator. — Wolfskin  v.  Smith,  89  P. 
1001. 


94  ANNUAL  LABOR. 

Pleading. 

There  has  been  no  consistency  in  the  rulings  as 
to  whether  abandonment  necessitates  a  special  plea. 
California  has  uniformly  held  that  it  does  not. — Will- 
son  v.  Cleavcland,  30  Cal.  192;  Bell  v.  Bed  Rock  Co.  1 
M.  R.  45;  36  Cal.  21 4.  Contreras  v.  Merck,  63  P.  336. 
Trevaskis  v.  Peard,  supra.  But  the  current  of  au- 
thority elsewhere  seems  to  require  such  plea. — Hector 
Co.  v.  Valley  View  Co.  64  P.  205.  Bishop  v.  Baisley, 
41  P.  936.  Renshaw  v.  Switzer,  13  P.  IT.. 

Whether  pleaded  or  not  the  decisions  are  uni- 
form that  when  relied  on  the  party  asserting  it  has 
the  burden  of  proof. — Johnson  v.  Young,  18  Colo.  625; 
Nichols  v.  Mclntosh,  J9  Colo.  22;  Hammer  v.  Oar- 
field  Co.  130  U.  8.  291.  And  it  must  be  strictly 
proved. — Mt.  Diablo  Co.  v.  Callison,  5  Saw.  439;  Col- 
man  v.  Clements,  5  M.  R.  247;  23  Cal.  245. 

As  to  pleading  and  proof  in  Adverse  Claim  cases 
see  p.  487. 

Outstanding  Abandoned  Title. 

The  fact  that  there  may  have  been  locations  now 
abandoned  and  not  claimed  by  either  party  renders 
such  outstanding  titles  of  no  relevancy  to  the  rights 
of  either. — Craig  v.  Thompson,  10  Colo.  517. 


ANNUAL    LABOR. 


Annual  Expenditure. 


R.  S.  Sec.  2324.  *  *  *  — On  each  claim  located 
after  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two,  and  until  a  patent  has  been  issued  therefor,  not  less 
than  one  hundred  dollars'  worth  of  labor  shall  be  per- 
formed or  improvements  made  during  each  year.  On  all 
claims  located  prior  to  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  ten  dollnrs'  worth  of  labor  shall  be 
performed  or  improvements  made  by  the  * first  day  of  Janu- 

*In  the  Revised  Statutes  the  date  printed  is  June  10, 
1874,  the  compilers  having  overlooked  the  second  Act  ex- 
tending the  time,  approved  June  6,  1874. — 18  Stat.  L.f  part 
3,  page  61. 


ANNUAL  LABOR.  95 

oryt  eighten  hundred  and  *•  >•>  nd/fl  ve,  and  each  year  there- 
after, for  each  one  hundred  feet  in  length  along  the  vein 
until  a  patent  has  been  issued  therefor  ;  but  where  such 
claims  are  hold  in  common,  such  expenditure  may  be  made 
upon  any  one  claim;  and  upon  a  failure  to  comply  with 
c.iiiditions.  the  claim  or  mine  upon  which  such  failure 
occurred  shall  be  open  to  relocation  in  the  same  manner  as 
if  no  location  of  the  same  had  ever  been  made,  provided 
that  the  original  locators,  their  heirs,  assigns,  or  legal  rep- 

tatives,  have  not  resumed  work  upon  the  claim  after 
failure  ;md  bofoiv  such  location.  *  *  *  —  Sec.  5,  A.  C. 

10,  187t. 


Amendment  of  1880,  Adopting  the  Calendar  Year. 

Sec.  2.  —  That  "section  twenty-three  hundred  and 
twenty-four  of  the  iii-vis.-.i  statutes  of  the  United  States 
be  amended  i>y  adding  the  following  words:  "rmriilni, 
That  the  period  within  which  the  work  required  to  be  done 
annually  on  all  unpa  tented  mineral  claims  shall  commence 
on  the  first  day  of  January  succeeding  the  date  of  location 
of  such  claim,  and  this  section  shall  apply  to  all  claims  lo- 
cated since  the  tenth  day  of  May,  anno  Domini  eighteen 
hundred  and  seventy-two."—  rJan.  ft,  1880. 

Annual  Labor  Was  Not  Required  by  either 
Legislative  or  Congressional  law  until  after  passage 
of  the  A.  C.  May  10,  1872. 

Often  Required  by  District  Rules. 

By  some  of  these  rules  a  man  was  bound  to  do 
some  work  upon  his  claim  every  week,  or  every 
month,  but  these  rules  in  most  sections  had  fallen 
into  disuse  at  the  time  of  the  passage  of  the  Act  re- 
ferred to.  Their  provisions  both  as  to  amount  re- 
quired and  the  period  in  which  to  perform  are  largely 
if  not  entirely  superseded  by  the  terms  of  the  Con- 
gressional Act. 

The  idea  of  annual  or  periodical  labor  is  not 
new;  it  was  a  part  of  the  Spanish  system,  and  gen- 
erally prevailed  on  the  Pacific  slope. 

The  A.  C.  May  10,  1872,  divided  lodes  into  two 
classes  with  respect  to  labor: 

1.  Lodes  located  before  its  passage. 

2.  Lodes  located  after  its  passage. 

Claims  located  Before  May  10,  1872. 

The  amount  of  labor  required  on  all  lodes  was 
$10  for  each  hundred  feet,  but  where  claims  were 


96  ANNUAL  LABOR. 

held  in  common,  the  whole  amount  of  work  might 
be  done  on  one  claim.  The  time  for  the  first  work 
on  old  lodes  was  originally  fixed  to  expire  May  10, 
1873,  i.  e.,  one  year  after  the  passage  of  the  act.  It 
was  further  extended  to  June  10,  1874,  and  finally 
postponed  to  January  1,  1875. — Thompson  v.  Jacobs 
2  P.  714. 

The  Act  of  1880  made  no  change  either  in  the 
amount  or  time  of  annual  labor  on  old  claims.  It  has 
always  been  and  still  is,  $10  for  each  100  feet  during 
each  year  of  our  Lord,  beginning  January  1,  1875; 
and  the  time  between  May  10,  1872,  and  January  1, 
1875,  constituted  the  period  for  the  first  required 
labor. 

Where  the  lode  consists  of  undivided  claims  ol 
100  or  200  feet  each,  as  in  the  case  of  most  locations 
made  before  May  10,  1872,  any  one  or  more  claims 
may  be  saved  by  the  expenditure  of  $10  worth  of  la- 
bor to  each  100  feet  which  the  owner  desires  to  seg- 
regate and  hold,  leaving  the  remainder  to  forfeiture; 
or  when  the  series  of  claims  are  held  in  common, 
the  full  amount  may  be  expended  on  any  one  claim, 
whether  they  were  originally  recorded  as  joint  or  as 
several  locations;  but  in  all  cases  where  less  than 
the  amount  required  to  hold  the  entire  lode  is  ex- 
pended, the  owner,  in  his  proof  of  labor,  should  state 
the  work  as  done  for  the  purpose  of  holding  only  so 
many  feet,  designating  where  they  lie  upon  the  lode. 

But  few  claims  remain  subject  to  this  law.  Dur- 
ing the  lapse  of  time,  now  more  than  thirty  years, 
they  have  been  either  abandoned  or  passed  on  to 
patent,  or  have  been  re-located  under  the  Act  of  1872. 
When  so  relocated  they  would  be  governed  by  the 
terms  of  the  next  subdivision. 

Claims  Located  Since  May  10,  1872. 

The  various  extensions  of  time  for  work  on  old 
lodes  did  not  apply  to  the  new  lodes.  The  period 
for  the  first  work  was  nexer  extended,  nor  has  any 
change  been  made  except  the  Act  of  1880.  Under 
the  original  Act  the  annual  period  for  labor  on 
claims  located  after  its  date,  May  10,  1872,  began  on 


ANNUAL  LABOR.  97 

the  date  of  location,  and  this  date  was  hard  to  fix  with 
exactness.  It  might  have  been  the  date  of  discovery, 
or  any  date,  intermediate  between  discovery  and  rec- 
ord. The  Act  of  1880  makes  the  annual  period  now 
coincide  with  that  fixed  for  old  claims,  to  wit:  each 
calendar  year. 

Each   Claim  an   Entirety — Work   on   Subdivided 
Claim. 

The  1,500-foot  lodes  being  single  claims  of  that 
length  and  a  certain  amount  of  work  being  required 
upon  the  claim  and  the  clause  as  to  "each  100  feet  in 
length  along  the  vein"  not  applying  to  these  new  loca- 

s,  it  does  not  seem  that  a  party,  by  expending 
any  portion  of  the  full  amount,  can  save  any  f  na- 
tional portion  of  his  lode.  But  if  a  party  own  a  seg- 
regated portion  of  such  claim:  Is  he  required  to 
do  the  full  amount  essential  to  hold  a  claim,  in  case 
the  other  owners  refuse  to  contribute? 

It  seems  he  is  under  this  necessity,  and  each 
interested  party  must  see  for  himself  that  the 
amount  required  to  hold  the  claim  is  done  by  some 
person,  and  if  the  whole  burden  falls  upon  one  party, 
the  rest  of  the  claim  becomes  forfeit  to  such  parts. 
There  is  no  distinction  made  between  those  who  own 
separate  feet  and  those  who  own  undivided  interests 
in  the  claim. 

The  word  "co-owners,"  used  in  the  Act,  does  not 
appear  to  be  used  in  its  ordinary  acceptation,  as  ten- 
ants in  common,  but  to  include  all  the  owners,  either 
in  common  or  after  they  have  segregated  their  inter- 
ests; the  claim  seems  to  be  treated  as  an  individual 
item  so  far  as  the  relations  between  the  Government 
and  the  miner  are  concerned;  if,  therefore,  all  the 
labor  is  performed  by  the  owner  of  the  east  end, 
he  may  claim  forfeit  of  the  west  end;  or  if  it  is  all 
performed  by  the  owner  of  an  undivided  half,  he 
is  in  position  to  become  the  sole  owner  by  proper 
notice  under  the  forfeiture  clause  upon  refusal  of 
the  other  co-tenant  to  contribute  his  proportion.  But 


98  ANNUAL  LABOR. 

this  is  only  the  apparent  reading  of  the  Act  as  to 
claims  which  have  been  segregated  into  several  parts, 
and  would  give  a  benefit  to  a  party  who  had  no  more 
connection  with  the  other  end  of  the  claim  than  a 
mere  stranger.  Consequently  this  can  only  be  treated 
as  a  suggestion  of  the  true  construction  of  an  Act 
which  is  so  worded  as  to  be  entirely  ambiguous  on 
this  point. 

The  above  paragraph  is  from  the  Fifth  edition 
of  this  book  in  1881,  but  we  have  seen  no  decision 
nor  found  any  reason  to  since  change  it  as  the  tru*> 
construction  of  the  Act. 

$500  Work  Already  Done. 

The  fact  that  sufficient  improvement  ($500 
worth)  has  been  done  to  authorize  issuance  of  patent, 
does  not  dispense  with  the  necessity  for  the  annual 
expenditure. 

Annual  labor  is  required,  although  the  claimant 
has  been  in  possession  for  more  than  the  statutory 
period. — Upton  v.  Santa  Rita  Co.  v  /'. 

Pending  Application  for  Patent,  until  entry,  the 
work  must  be  kept  up. — South  End  Co.  v.  Tinney.  .L~> 
P.  89.  Where  an  applicant  after  publication  delays 
entry  and  neglects  his  annual  labor  the  ground  is 
open  for  relocation. — Gillis  v.  Downey,  85  F.  (89, 
But  see  on  this  point,  page  467. 

Annual  Labor  After  Entry. 

It  has  been  decided  that  annual  labor  can  not  be 
required  after  entry  in  the  Land  Office,  although  the 
patent  has  not  yet  been  formally  issued;  and  such 
decision  is  clearly  correct,  because  the  patent,  when 
it  issues,  relates  back  to  the  date  of  entry,  and  so 
satisfies  the  wording  of  the  Act,  which  requires  the 
annual  labor  each  year  "until  patented." — Alta  Co. 
v.  Benson  Co.  16  P.  565;  145  U.  S.  428;  Aurora  Hill 
Co.  v.  85  Co.  34  F.  515;  15  M.  R.  581;  L.  0.  Reg.  14; 
26  L.  D.  196;  27  Id.  396.  A  relocation  can  not  be 
made  on  entered  lands  as  long  as  the  entry  stands. — 
Neilson  v.  Champaigne  Co.  Ill  F.  655;  Benson  Co. 


ANNUAL  LABOR.  99 

v.  Alta  Co.  145  U.  S.  ^28:  Southern  Cross  Co.  v. 
Sexton,  82  P.  423.  Nevertheless,  in  such  case,  a  party 
runs  the  risk  of  the  consequences  in  case  his  re- 
ceiver's receipt  should  be  canceled. — Swiggart  v. 
\Valkrr.  .10  P.  //;>.  In  Murray  r.  Pulylase,  59  P.  440, 
the  Receiver's  receipt  had  been  set  aside  for  fraud, 
the  annual  labor  not  kept  up  and  there  had  been  a 
relocation.  Held  that  the  claim  was  lost  to  the 
entryiiKin. 

Time  During  Which  Labor  Must  Be  Completed. 

On  all  lodes  located  before  or  since  May  10,  1872, 
tho  year  for  doing  the  labor  is  each  year  of  our  L»ni. 
beginning  January  1st,  and  ending  December  31st. 

The  Location  Year. 

Since  the  Act  of  1880  no  annual  labor  is  re- 
quired during  the  year  in  which  the  location  is  made. 
— Hall  v.  Hale,  8  Colo.  351;  McOinnis  v.  Egbert.  l.~> 
M.  R.  829;  8  Colo.  41.  Its  language  is  that  the  period 
"shall  commence  on  the  first  .lay  nt  .January  suc- 
ceeding the  date  of  location." 

If  a  discovery  be  made  in  the  latter  part  of  the 
year  but  the  staking  and  record  are  not  completed  un- 
til some  time  in  the  early  part  of  the  following  year 
the  latter  year  would  be,  in  our  opinion,  the  location 
year,  and  there  could  be  no  forfeiture  for  neglect  to 
do  the  annual  labor  during  that  year;  but  we  find  no 
case  where  the  point  has  been  in  terms  decided.  A 
location  is  not  complete  until  all  its  several  parts  have 
been  perfected. — McKay  v.  McDougall,  64  P.  669; 
Hir'key  v.  Anaconda  Co.  SI  P.  811. 

But  a  district  rule  or  Statute  may  impose  condi- 
tions which  imply  expenditure  during  the  location 
year. — NortJimore  v.  Simmons.  97  F.  387. 

Each  Annual  Period  An  Entirety. 

The  owner  has  the  whole  of  each  year  to  do  his 
$100  worth  of  work  or  make  his  $100  worth  of  im- 
provements.— Belk  v.  Meagher,  3  Mont.  65;  1  M.  R. 

:  Atkins  v.  Hendree,  1  Ida.  107 ;  2  M.  R.  328;  Mills 
v.  Fletcher,  34  P.  637. 


100  ANNUAL  LABOR. 

It  therefore  follows  that  if,  for  instance,  he  has 
expended  $100  during  the  first  month  of  the  first  year 
he  may  wait  until  the  twelfth  month  of  the  second 
year  before  he  does  his  second  year's  work.  That 
such  is  the  law  admits  of  no  doubt  upon  the  reading 
of  the  Act.  At  the  same  time  the  disposition  to  take 
advantage  of  this  fact  leads  to  delays  which  often 
ultimate  in  allowing  the  whole  time  to  pass  by  and 
the  claim  to  become  liable  to  relocation. 

What  Counts  for  Improvements. 

Any  work  done  for  the  purpose  of  discovering 
minerals  is  improvements  within  the  spirit  of  th»« 
statute. — U.  8.  v.  Iron-Silver  Co.  24  F.  568.  Road 
building  counted  as  annual  labor. — Doherty  v.  Mor- 
ris, 28  P.  85;  Mt.  Diablo  Co.  v.  'Callison,  5  Sawy. 
439;  9  M.  R.  616.  Flumes,  drains  or  the  turning  of  a 
stream  or  the  sinking  of  a  common  shaft  will  count. 
— St.  Louis  Co.  v.  Kemp,  104  U.  8.  636;  11  M.  J: 

Work  done  by  any  party  in  privity  of  title  with 
the  owner  (Godfrey  v.  Faust,  101  N.  W.  718;  105 
N.  W.  460),  and  even  work  gratuitously  contributed, 
will  count. — Anderson  v.  Caughey,  84  P.  223. 

Watchman. 

Where  a  mine  is  idle,  the  time  and  labor  of  a- 
watchman  or  custodian  may  be  treated  as  annual 
labor.— Lockhart  v.  Rollins,  21  P.  413;  16  M.  R.  /'», 
Altoona  Co.  v.  Integral  Co.  45  P.  1047 ;  Tripp  v.  Dun- 
phy,  28  L.  D.  14.  Pay  of  watchman  allowed  where 
there  is  portable  property  needing  protection. — Kins- 
ley v.  New  Vulture  Co.  90  P.  438.  Otherwise  where 
there  is  no  such  property. — Gear  v.  Ford,  88  P.  600. 

What  Will  Not  Count. 

A  house  for  the  use  of  the  miners  built  200 
feet  away  from  the  claim  can  not  be  considered  as 
annual  labor. — Remmington  v.  Bandit,  9  Pac.  819. 

The  expense  of  taking  timbers,  lumber,  bucket, 
rope  and  tools  to  the  mine — all  carried  away  after 
slight  use,  if  used  at  all — will  not  avail  for  annual 
labor. — Honaker  v.  Martin,  27  P.  397. 


ANNUAL,  LABOR.  101 

Dumping  tailings  on  a  claim  is  no  improve- 
ment.— Jackson  v.  Roby,  109  U.  8.  440.  Traveling 
and  expenses  in  getting  ready  to  go  to  work  can  not 
be  considered. — McGarrity  v.  Byington,  12  Col.  426; 
2  M.  R.  311;  DuPrat  v.  James,  65  Cal.  555;  15  M.  R. 
..'//•  Nor  work  done  by  third  parties  and  bought  in. 
—Little  Gunnell  Co.  v.  Kimber,  1  M.  R.  536.  But  see 
post  p.  463. 

Taking  specimens  for  assays  will  not  count  for 
annual  labor  nor  as  a  legitimate  resumption  of  work. 
—Bishop  v.  Baisley,  41  P.  936.  The  cost  of  sharp- 
ening tools  may  or  may  not  be  a  legitimate  item, 
according  to  circumstances. — Hirschler  v.  McKen- 
tlrirks.  40  P.  290. 

Work  Done  Outside  of  Claim  or  on  Group. 

Work  done  beyond  the  lines  will  count  when  it 
has  direct  reference  to  the  drainage  or  development 
of  the  claim.— Packer  v.  Heaton,  9  Cal.  569;  4  M.  R. 
/;:;  Kramer  v.  Settle,  1  Ida.  485;  9  M.  R.  561;  Mt. 
Diablo  Co.  v.  Callison,  5  8awy.  439;  9  M.  R.  616; 
Klopenstine  v.  Hays,  57  P.  712;  17  L.  D.  190. 
Whether  the  work  done  on  one  is  really  for  the  bene- 
fit of  the  group  is  for  the  jury  to  say. — Wilson  v. 
Triumph  Co.  56  P.  300;  Yreka  Co.  v.  Knight,  65 
P.  1092.  Where  sundry  claims  are  worked  to- 
gether as  one  group,  the  development  work  though 
•  confined  to  a  single  claim,  may  count  for  all. — 
chambers  v.  Harrington,  111  U.  8.  350;  Jupiter  Co. 
v.  Bodie  Co.  11  F.  666;  4  M.  R.  Jt13 ;  St.  Louis  Co. 
v.  Kemp,  104  U.  S.  636;  11  M.  R.  692;  DeNoon  v. 
Morrison,  83  Cal.  163;  16  M.  R.  33;  23  L.  D.  267. 

There  are  two  cases  which  hold  that  the  claims 
must  be  contiguous  in  order  that  work  done  on  one 
may  count  for  another.  Gird  v.  California  Oil  Co. 
60  F.  531;  18  M.  R.  45;  Royston  v.  Miller,  76  F. 
50;  18  M.  R.  418.  But  Altoona  Co.  v.  Integral  Co. 
18  M.  R.  410;  114  Cal.  100,  is  to  the  contrary  and  there 
is  nothing  in  the  wording  of  the  Congressional  Act 
which  compels  them  to  be  contiguous  except  in  the 
case  of  oil  placers. 


102  ANNUAL  LABOR. 

The  work  may  be  done  on  an  adjoining  pat- 
ented claim  but  when  done  outside  the  bounds  of 
the  claim  intended  to  be  protected,  the  burden  of 
proof  is  on  the  party  asserting  that  it  was  for  the 
benefit  of  such  claim  and  was  done  as  annual  labor 
for  the  protection  of  such  claim. — Hall  v.  Kearny, 
18  Colo.  505;  17  M.  R.  59Jf ;  Sherlock  v.  Leighton.  >;.>, 
P.  580. 

The  Question  of  ''Benefit  to  the  Claim"  can  only 
arise  when  the  work  itself  was  done  on  some  one 
claim  and  it  is  sought  to  utilize  it  for  the  benefit 
of  another  claim  held  by  the  same  party  or  where 
it  is  outside  the  claim  proper  in  the  shape  of  road, 
building,  ditch,  etc.  For  any  work  whatever  done 
upon  and  within  the  lines  of  the  claim  in  the  nature 
of  mining  or  preparing  for  mining  is  strictly  within 
the  terms  of  the  statute.  A  cross-cut  started  on  the 
claim,  above  the  vein,  intended  to  benefit  a  claim 
further  up.  would  count  for  work  on  both  claims; 
upon  the  claim  on  which  it  started  because  within  its 
lines  and  for  the  claim  above  because  driven  for  its 
benefit. 

Assessment  work  outside  the  claim  must  be  of 
value  to  the  claim  intended  to  be  protected.  Little 
Dvrrit  Co.  v.  Arapahoe  Co.  71  P.  889. 

Diverse  Ownerships  in  Group  or  in  Tunnel. 

Work  done  by  tunnel  intended  to  cut  two  claims 
owned  by  the  same  person  is  good  to  hold  both. — 
Book  v.  Justice  Co.  58  F.  107.  Work  done  on  one 
of  a  group  held  in  different  names  but  really  owned 
in  common  has  been  ruled  to  avail  for  all. — Eberle 
v.  Carmichael,  42  P.  95.  And  we  see  no  reason 
why  a  tunnel  owned  in  common  and  worked  by  the 
joint  labor  or  contributions  of  the?  several  owners 
of  different  claims  intended  to  be  cut  by  such  tun- 
nel should  not  avail  to  protect  each  claim  provided 
the  full  $100  is  expended  for  each  claim. — Fissure 
Co.  v.  Old  Susan  Co.  63  P.  587. 

A  blacksmith  shop  used  for  the  benefit  of  the 
claim  in  controversy,  and  for  other  claims,  cannot 


ANNUAL  LABOR.  103 

be  counted  for  annual  labor  with  no  proof  of  how 
much  of  its  value  could  be  apportioned  to  the  claim 
in  controversy.— r/jfo/;  r.  Son  to  Rita  Co.  89  P.  276. 

Annual  Labor  by  Tunnel. 
See  p.  257. 

Amount,  How  Estimated — District  Rules. 

As  to  such  district  rules  as  attempt  to  fix  the 
value  of  a  day's  labor  above  its  real  cost  in  esti- 
mating the  amount  of  work  done,  they  amount  to 

>lutely  nothing.  The  "fiat"  does  not  alter  the 
"fact."  The  true  measure  is  the  real  expenditure. — 
Wright  r.  Killinn.  <//  /'.  98;  /''/"/  v.  Oldhauber,  61 
r.  $49;  \\'<,»<iy  v.  Barnunl.  <•:,  g.  \\\  100.  And  if  the 
work  lias  been  done,  or  the  materials  furnished  by 
the  owner  himself,  the  measure  of  value  is  what  it 
would  ha\fe  cost  to  procure  the  same  labor  and  mate- 
rials from  a  second  party.  In  other  words,  the  market 
value  of  the  labor  and  materials. — Quimby  v.  Boyd,  8 
Colo.  19j,  8^2.  And  its  enhancing  the  value  of  the 
claim  is  no  test. — Mattinoly  v.  Lewisohn,  85  P.  III. 

The  test  is  what  the  work  was  worth,  rather  than 
what  was  paid  for  it,  but  what  was  paid  for  it  goes 
to  prove  its  value. — Stolp  v.  Treasury  M.  Co.  80  P. 
M7.  McCormick  v.  Parriott,  80  P.  10  M.  A  party 
cannot  put  an  arbitrary  price  on  his  own  labor. — 
McKay  v.  Neussler,  /.'/8  F.  86. 

The  Fact  that  the  Work  has  Not  Yet  Been  Paid 
for  does  not  invalidate  its  sufficiency  to  count  as 
annual  labor. — Lockhart  v.  Rollins,  21  P.  '/J3;  16 
M.  R.  16;  Coleman  v.  Curtis,  30  P.  266. 

Rightful  Owner  Out  of  Possession. 

Where  possession  is  wrongfully  taken  and  with- 
held, the  rightful  owner  is  excused  from  the  neces- 
sity of  doing  the  work. — Utah  Co.  v.  Dickert  Co.  21 
P.  1002;  Slavonian  Co.  v.  Perasich,  7  F.  331;  1  M.  R. 
541;  Mills  r.  Fletcher,  SJt  P.  637;  Trevaskis  v.  Peard, 
.'///  P.  2//tf;  Field  v.  Tanner.  7.7  P.  916;  32  Colo.  278. 


104  ANNUAL  LABOR. 

A  relocator  cannot  take  advantage  of  the  fact  that 
the  work  was  not  done  when  prevented  by  his  own 
act. — Garvey  v.  Elder,  109  N.  W.  508. 

Performance  of  Annual  Labor  After  the  Year  Has 

Expired — Two  Parties  Essential  to  Forfeiture. 

The  neglect  to  do  the  annual  labor  required  by 
the  United  States  government  by  no  means  works 
a  forfeiture  of  the  claim. — Lakin  v.  Sierra  Suites  Co. 
25  F.  843;  Lacey  v.  Woodward,  25  P.  785.  To 
illustrate:  If  a  lode  was  located  in  1890  and  after 
that  year  no  annual  work  was  done  until  1896 
(when  a  period  of  five  full  years  would  have  in- 
tervened), and  in  1896  the  owner  enters  and  per- 
forms $100  worth  of  work  for  that  year,  he  con- 
tinues to  be  the  owner  of  the  claim,  and  his  title 
relates  back  to  the  original  location  of  1890;  pro- 
vided always,  that  the  lode  has  not  been  relocated 
in  the  meantime. — Crown  Point  M.  Co.  v.  Crismon, 
21  M.  R.  406:  65  P.  87. 

It  requires  two  parties  to  make  a  forfeiture  ab- 
solute: First,  the  party  who  abandons,  and  sec- 
ond, the  party  who  relocates.  The  second  party 
therefore  must  take  advantage  of  the  first  party's 
default  before  such  default  can  enure  to  the  sec- 
ond party's  benefit. — Little  Gunnell  Co.  v.  Kimber, 
1  M.  R.  536;  Seals  v.  Cone,  62  P.  948. 

The  fact  that  failure  to  do  the  work  does  not 
ipso  facto  work  a  forfeiture  and  the  fact  that  ad- 
vantage of  the  default  must  be  taken  by  some  ad- 
verse party  is  important  in  several  classes  of  cases. 

First. — Where  the  work  done  before  the  neglect, 
is  necessary  to  complete  the  $500  worth  of  improve- 
ments required  before  patenting. 

Second. — Where  in  a  suit  of  ejectment  between 
two  claims  it  is  necessary  to  prove  priority  and 
carry  the  title  back  to  the  original  location. 

Third. — Where  a  party  has  neglected  to  do  his 
annual  work  and  a  third  party  has  entered  for  pur- 
pose of  relocation. 


ANNUAL,  LABOR.  105 

Fourth. — The  fact  that  neglect  to  do  one  or  more 
years'  labor  does  not,  ipso  facto,  operate  as  a  for- 
feiture, is  of  special  importance  in  the  case  of  over- 
lapping claims,  where  the  junior  claim  has  been 
worked  and  the  senior  claim  has  not  been  worked. 

1.  Where  the  Work  Done  Before  the  Neglect  is 
necessary   to    complete   the   $500   worth   of   im- 
provements required  before  patenting.     If  failure  to 
do  one  year's  work  operates,  ipso  facto,  to  defeat  the 
location,  in  such  case  the  title  would  have  to  date 
from  the  date  of  resumption;  in  fact,  a  new  location 
would  have  to  be  made  by  the  owner.    But  the  failure 
not  having  been  in  due  time  taken  advantage  of,  the 
old  title  remains,  dates  from  original  discovery,  and 
consequently   old   work   and   new   count   together  as 
improvements  on  the  claim  for  purpose  of  patenting. 

2.  Where  It  is  Essential  to  Carry  the  Title  Back 
to  Discovery. 

The  remarks  of  the  foregoing  paragraph  apply 
also  to  this  heading.  The  doctrine  of  relation  car- 
ries a  title  back  to  the  first  step  in  its  inception, 
always  excepting  where  an  adverse  right  has  inter- 
vened. As  the  failure  of  itself  works  no  forfeiture, 
the  continuity  in  this  case  is  not  broken.  A  loca- 
tion, however,  made  over  a  claim  where  the  work 
has  not  been  done  (before  bona  fide  resumption  by 
the  owner)  would  break  this  continuity  and  would 
take  the  conflict,  whether  it  purported  to  be  a  re- 
location of  the  defaulting  claim  or  only  incidentally 
took  some  of  its  ground. 

There  is  a  dictum  in  Klopenstine  v.  Hays,  57 
P.  712,  that  if  work  is  resumed  by  the  original 
owner  after  failure  to  do  work  for  a  certain  year 
and  after  a  valid  relocation  by  a  second  party  who 
also  failed  to  keep  up  his  work,  that  such  resump- 
tion by  the  original  owner  revives  the  original  title. 
It  may  be  that  in  such  circumstances  the  original 
owner  may  not  be  required  to  go  through  the  form 
of  a  new"  location  and  record;  but  that  his  title 
would  go  back  by  relation  beyond  the  point  of  time 


106  ANNUAL  LABOR. 

when  a  valid  possessory  title  to  the  same  ground 
existed  in  a  third  party  is  an  extremely  doubtful 
proposition. 

3.     Where  a  Third  Party  Has  Entered  for  Pur- 
pose of  Relocation, 

The  words  of  the  Act  relative  to  the  latter  class 
of  cases  are  as  follows: 

"Provided    thai    the   ori^in;il    lorjiiurs.    their    lu-ir.v 
si.mis.    or   le.u.-il    ivpn  sentjit  iv«  s.    have   not    resumed    work   upon 
the  clnim   :it't»-r   I'M  i  I  lire  ;uid   ln>fon»  such  location." 

If  this  location  of  the  third  party  is  complete  be- 
fore the  re-entry  of  the  original  owner,  of  course  the 
original  owner  is  too  late.  If,  on  the  other  hand,  the 
original  owner  has  bona  fide  resumed  work  bet  on- 
the  attempted  location  over  his  ground,  his  original 
title  becomes  revested  the  moment  he  has  completed 
an  amount  of  work  equivalent  to  that  required  for 
the  previous  year.  But  where  the  third  party  has 
entered,  and  before  he  completes  his  location  the 
original  owner  also  enters  and  resumes  work,  the 
question  remains:  Is  such  re-entry  of  the  owner  suf- 
ficient to  defeat  the  intervening  claimant?  The  Act 
says  that  the  owner  may  resume  work  at  any  time 
"before  such  location."  The  location  of  the  inter- 
venor  is  not  complete  until  he  has  done  a  series  of 
acts,  usually  requiring  several  days  to  consummate. 
The  locator  must  sink  a  shaft  ten  feet  in  depth,  and 
set  his  stakes.  In  the  meantime  has  the  original 
owner  the  right  to  resume  work?  It  was  so  decided 
in  the  case  of  Pharis  v.  Mnlrtoon.  15  Cal.  28%;  15  M. 
R.  348.  There,  however,  the  relocator  had  entered 
and  posted  his  notice  just  after  midnight  of  the  last 
day  of  the  year  and  the  original  owner  resumed  work 
by  the  usual  hour  for  honest  labor  on  the  morning  of 
the  first.  The  relocator  had  barely  a  technical  case, 
if  any.  In  another  instance,  on  facts  much  stronger 
for  the  second  party  (Gonu  v.  Russell,  3  Mont.  358; 
12  M.  R.  630),  it  was  distinctly  held  that  the  re-entry 
of  the  original  owner  before  the  newcomer's  location 
was  completed,  would  save  the  forfeiture.  The  same 


ANNUAL  LABOR.  107 

court  reaffirms  this  ruling  in  McKay  v.  McDougall, 
H't  P. 

On  the  contrary,  HALLETT,  J.,  in  the  case  of  Lit- 
tle Ounnell  Co.  v.  Kimber,  1  M.  R.  536,  held  that  the 
party  attempting  to  take  up  abandoned  property  has 
the  same  period  of  three  months  to  complete  his  lo- 
cation, which  is  allowed  by  law  to  a  discoverer;  and 
Pelican  Co.  v.  8nodgr<<  in.  339,  is  to  the  same 

effect. 

We  have  little  doubt  of  the  correctness  of  the  lat- 
ter opinion.  "The"  condition  of  development  should 
be  attached  to  every  mine;  and  courts  should,  as  far 
as  consistent  with  legal  principles,  maintain  the  con- 
struction of  mining  customs  which  accomplish  this 
end."— King  v.  Kdwards,  1  Mont.  .>.'..',:  .'t  M.  R.  \80; 
weJZ  v.  Brosseau,  65  Cal.  605. 

In  B  ("o.  v.  Dt'i'-rrnn.  n  >  <•<//.  /<;</.  plain- 

tiff, the  original  owner,  did  only  one-half  the  re- 
quired amount  in  1880.  In  January,  1881,  he  did  $24 
\\orth  of  work  on  two  claims.  Defendant  relocated 
in  August,  1881.  Held,  that  the  plaintiff  had  resumed 
work  and  was  entitled  to  recover.  Such  a  decision 
is  only  trifling  with  the  law  and  the  rights  of  parties 
has.  il  on  tin-  law.  On  a  case-  of  like  facts  the  con- 
trary lias  since  been  held  by  the  same  court. — Mc- 
Cormit-h'  /.  HulrtiriH.  .i7  P.  903. 

In  the  well  considered  opinion  in  Honaker  v. 
Martin  (Mont.),  ..'7  /'.  "'.''7.  the  cases  on  this  subject 
are  reviewed  by  BLAKE,  C.  J.,  and  it  was  decided  that 
where  a  resumption  takes  place  it  must  be  substan- 
tial, and  result  in  the  prompt  performance  of  at  least 
the  full  amount  which  should  have  been  done  the 
previous  year.  It  does  not  decide  in  terms  as  in  the 
Pelican  case  and  Gunnell  case,  that  the  resumption  is 
too  late  when  the  first  act  of  relocation  has  been 
initiated,  but  it  bears  out  the  argument  to  the  same 
result. 

The  owners  of  the  Nellie  were  on  the  ground 
December  31,  and  resumed  work  on  January  1.  The 
same  day  the  Equator  was  located  over  this  ground. 
The  Court  held  that  such  location  could  not  be  in- 


108  ANNUAL  LABOR. 

itiated  while  the  ground  still  remained  unforfeited, 
the  owners  having  resumed  the  work,  though  they 
afterwards  failed  to  complete  the  full  assessment. — 
Jordan  v.  Duke,  53  P.  191. 

Labor  when  resumed  must  be  prosecuted  with 
reasonable  diligence  till  the  $100  is  complete. — 
Hirschler  v.  McKendricks,  40  P.  290. 

Where  a  claimant  is  at  work  on  the  last  day  of 
the  year  intending  to  continue  work  on  the  next  day, 
a  party  who  locates  before  the  usual  hour  to  start 
work  is  a  trespasser. — Willitt  v.  Baker,  133  F.  937. 

4.     Work  Neglected  on  Senior  Claim  Overlapped 

by  Junior  Claim. 

Where  a  local  statute  provides  for  filing  reloca- 
tion certificate  to  take  in  the  overlap  of  the  senior 
claim,  which  has  become  abandoned,  we  have  no 
doubt  that  such  filing  is  necessary  to  give  it  to  the 
junior  claimant.  Even  without  such  statute  it  was 
generally  conceded  that  the  failure  did  not  ipso  facto 
give  it  to  the  junior  claimant. — 1  Lindley  2d  Ed., 
Sec.  363;  1  Snyder,  Sec.  574.  It  was  so  expressly 
decided  in  Oscamp  v.  Crystal  R.  Co.  58  F.  293.  In 
numberless  instances  the  two  claimants,  being  on 
friendly  relations,  the  junior  claimant  has  no  desire 
to  take  advantage  of  the  failure  of  the  senior 
claimant  to  do  his  work  for  a  single  year.  Does  the 
law  then  give  it  to  him  against  his  will?  It  is  true 
there  was  a  dictum  in  McPherson  v.  Julius,  95  N.  \V. 
235  to  that  effect,  but  all  other  authority  was  against 
it,  until  the  case  of  Lavagnino  v.  Uhlig,  198  U.  S. 
443  was  decided  in  1904.  The  Court  there  held  that 
the  Uhlig  lode,  located  over  the  Levi  P.  lode,  and 
therefore  not  valid  as  to  the  overlap,  tciok  the  overlap 
upon  failure  of  the  Levi  P.  to  do  its  work  for  a  cer- 
tain year,  and  cut  out  the  Yes  You  Do  lode,  which 
had  been  located  immediately  after  the  expiration 
of  the  year  of  such  failure.  The  opinion  is  obscure 
and  cannot  be  reconciled  with  the  later  case  of 
Broion  v.  Gurney,  201  U.  S.  184,  where,  also,  there 
were  three  successive  locations,  and  the  Court  held 
that  no  relocation  became  effective  unless  initiated 


ANNUAL,  LABOR.  109 

after  the  prior  location  had  been  abandoned.  The 
Supreme  Court  of  Utah  in  Lockhart  v.  Farrell,  86 
P.  1077,  cites  both  decisions  and  follows  the  latter. 

.The  Relocator  No  Trespasser. 

When  the  year  has  expired  and  the  work  has 
not  been  done  a  third  party  has  the  right  to  enter 
within  its  boundaries  and  relocate  the  claim,  al- 
though the  original  owner  be  still  (constructively) 
in  possession. — DuPrat  v.  James,  65  Cal.  555;  15  M. 
R.  341;  Brown  v.  Oregon  King  Co.  21  M.  R.  485;  110 
1'.  728. 

A  Relocation  Begun  Before  the  Year  Expires  Is 
void.— Belk  v.  Meagher,  3  Mont.  65;  1  M.  R.  522.  See 
PI).  37,  490. 

Equity  of  the  Annual  Labor  Law. 

The  opposition  to  the  requirement  of  annual 
labor  so  evident  when  first  required  has  long  since 
yielded  to  a  concession  of  its  equity  even  in  the  case 
of  claims  located  before  its  passage. 

The  holder  has  no  just  right  to  prevent  the  gov- 
ernment disposing  of  such  claims  as  he  is  unwilling 
or  unable  to  work,  to  such  as  are  ready  to  assume  the 
risk  and  develop  the  deposit,  the  estate  of  the  holder 
not  being  absolute,  but  by  implied  contract  and  gen- 
eral mining  custom  conditioned  upon  development; 
of  which  development  the  Government  has  merely 
fixed  the  amount  by  the  Act  of  1872,  and  that  at  a 
reasonable  limit. 

Development  is  the  condition  upon  which  the 
Government  allows  the  miner  to  hold  his  possessory 
title  and  afterwards  perfect  it  by  patent. — Erhardt 
v.  Boaro,  113  U.  8.  527;  15  M.  R.  472;  O'Reilly  v. 
Campbell,  116  U.  8.  418;  Kramer  v.  Settle,  1  Ida.  485; 
9  M.  R.  561.  Nevertheless  the  Act  is  to  be  strictly 
construed  against  forfeiture. — Emerson  v.  McWhirter, 
65  P.  1036. 


110  ANNUAL  LABOR. 

It  is  no  objection  to  testimony  to  disprove  annual 
labor  that  it  is  negative  in  character;  it  is  necessarily 
so.  The  evidence  reviewed  and  held  to  outweigh  the 
positive  testimony  that  it  was  done. — First  Nat.  M. 
Co.  v.  Altvater,  149  Fed.  393.  Evidence  reviewed  and- 
held  proof  of  labor  performed. — Smith  v.  Mt.  Guli-fi 
Co.  85  P.  918. 

Neglect  to  do  the  work  forfeits  the  claim,  al- 
though the  locator  remains  in  possession. — Goldberg 
v.  Bruschi  (Gal.),  81  P.  23. 

As  to  the  Plea  of  Forfeiture  for  failure  to  perform 
see  page  94.  In  adverse  claim  suits,  page  487. 

The  Burden  of  Proof  is  upon  the  party  asserting 
that  the  work  was  not  done. — Quigley  v.  Gillctt,  .{'> 
P.  1040;  Hall  v.  Kearny,  18  Colo.  505;  17  M.  R.  594; 
Harris  v.  Kellogg,  49  P.  708;  Axiom  Co.  v.  White. 
72  N.  W.  462;  Beals  v.  Cone,  62  P.  948.  And  the 
proof  should  be  clear  and  convincing. — Strasburger 
v.  Beecher,  49  P.  740;  Dibble  v.  Castle  Chief  Co.  70 
N.  W.  1055;  Crown  Point  Co.  v.  Crismon,  65  P.  87; 
Upton  v.  Santa  Rita  Co.  89  P.  275;  Gear  v.  Ford,  88 
P.  600.  As  to  burden  of  proof  when  the  work  \\;is 
done  outside  the  claim,  see  p.  101. 

On  Rebuttal  the  other  side  may  show  that  the 
work  did  not  benefit  the  claim.  But  the  work  done 
need  not  be  that  which  would  be  most  beneficial 
to  the  claim. — Sherlock  v.  Lci'/liton.  r,.i  P.  580. 

Proof  that  the  labor  in  question  had  been  ap- 
plied as  improvements  on  application  for  patent  on 
another  claim  is  admissible. — White  River  Co.  v. 
Langston  76  Ark.  'j>>0;  88  S.  W.  in  I. 

Proof  of  Annual  Labor. 

R.  S.  Colo.  Sec.  420{». — Within  six  months  after  any 
set  time  or  annual  period  allowed  for  the  performance  of 
labor  or  making  improvements  upon  any  lode  claim  or  placer 
claim,  the  person  on  whose  behalf  such  outlay  was  made, 
or  some  person  for  him.  may  make  and  record"  in  the  office 


ANNUAL  LABOR.  Ill 

•  if  the  ivcor«I«T  MI'   the  county   wherein  such   claim  is  situate, 
.-in  :iHiil:ivit   in  sulist.-inrr  ;is  tallows: 

The  continuation  of  same  section  contains  a 
form,  same  as  on  page  112,  and  makes  the  affidavit,  or 

-•rtificd  copy  of  it,  prima  facie  evidence  of  the 
performance.  The  object  of  the  section  is  to  pro- 
vide a  convenient  method  of  preserving  proof  of  the 
labor  performed  by  making  the  affidavit  prima  facie 
evidence  of  the  fact. — Coleman  v.  Curtis,  30  P.  MS. 

Like  acts  exist  in  most  of  the  other  States  and 
Territories,  the  time  for  filing  the  certificate  being: 
in  Arizona  within  three  months;  California •  and 
Washington  within  30  days;  Idaho  and  New  Mexico 
within  60  days  after  the  period  allowed  for  perform- 
ance. In  Montana  20  days,  Nevada  and  Wyoming  60 
days,  Utah  30  days  after  completion  of  work. 

The  special  A.  C.  of  1907  for  Alaska  covering  this 
matter  of  proof  of  labor  is  printed  on  p.  502. 

Failure  to  File  Affidavit  of  labor. 

The  neglect  to  file  proof  of  labor,  if  the  labor 
has  in  fact  been  done,  would  not  leave  the  lode  open 
to  relocation,  and  the  doing  of  the  labor  can  be  shown 
by  oral  testimony. — M cOinnis  v.  Egbert,  8  Colo.  /  / . 
15  M.  H.  .;.'.'»;  Book  v.  Justice  Co.  58  F.  118;  17  M.  H. 
917;  Murray  Hill  Co.  v.  Havenor,  66  P.  162.  But 
the  precaution  to  file  should  by  no  means  be  neg- 
lected. The  filing  makes  out  the  proof  of  the  fact  of 
the  labor  being  done,  which  might  afterwards  be  a 
difficult  matter  to  show. 

The  California  Act  of  1891  purported  to  make  the 
filing  obligatory. — Harris  v.  Kellogg,  49  P.  708,  and 
in  Idaho  the  failure  to  file  is  prima  facie  evidence 
that  the  work  has  not  been  done. 

The  great  objection  to  annual  labor,  with  the  pro- 
fessional mind,  is  that  it  throws  a  mining  title  upon 
constant  parol  proof,  takes  it  out  of  the  chain  of  title 
as  found  recorded,  and  makes  it  depend  upon  the  ex- 


112  ANNUAL  LABOR. 

istence  of  facts  which  do  not  appear  of  record.  This 
evil  should  be  obviated  as  far  as  possible  by  precau- 
tions, such  as  are  above  suggested;  but,  after  all,  the 
result  remains,  that  no  claim  can  be  considered  se- 
cure until  a  patent  is  obtained,  and  the  title  taken 
out  of  the  class  of  conditional  estates. 

FoKM    •  »]••    AITIPAVIT    <>F   LABOR    Pi: UK"    ' 

STATK  <>i    COLORADO,  Summit  County:  as: 

I'.efore  me,  the  subscriber,  personally  appeared  I.  P. 
Lnnthhuj.  who  lieint:  <luly  sworn,  sniih  that  at  least  ">"' 
Inniilmt  dollars'  \\orth  of  work  or  improvements  were  per- 
formed or  made  upon  ilu-  Chun*  I.ntlc.  situate  on  8w>€f 
momTtain.  in  .\niltnn-ln-  Mining  IMstrict.  County  of  Summit. 
State  of  Colorado,  between  tin-  first  dny  of  Ja'nuary,  A.  D. 
I!ni7.  :ind  tin-  I  hiny  first  day  of  I  >,-,-,  -mlM-r.  A.  l'>.  I!". 7. 
Such  expenditure  v.  :,s  made  by  or  at  the  expense  of  Robert 
]\  .  r'ntiif.  owner  (or  one  of  the  owners)  of  said  claim,  for 
the  pin-pose  of  complying  with  the  law  and  holding  said 
claim.  I.  P.  LAMBING. 

Sworn  and  sul.s, -ril.ed  In-fore  me  this  second  day  of 
JriHiinrii.  A.  l>  r.mv  Jami's  W.  8 wisher, 

I  SKA  i.|  Notary  Public. 

A  single  affidavit  may  be  filed  for  the  labor  on 
several  claims. — McOinnis  v.  Egbert,  8  Colo.  ',1:  J~> 
M.  R.  829.  And  it  may  be  filed  before  the  year 
s.— Id. 


Certificate  in  Lieu  of  Annual  Labor. 

In  1893  and  1894  Congress  passed  Acts  suspend- 
ing for  each  of  those  years  the  requirement  of  annual 
labor,  provided  the  claimant  recorded  a  notice  of  his 
intention  to  hold  and  work  the  claim. — 28  St.  L.  6; 
114.  In  both  Acts  South  Dakota  was  excluded. 

Each  of  the  Acts  required  the  record  to  be  made 
during  the  year  for  which  it  was  to  have  effect.  But 
a  certificate  filed  in  1894,  although  neither  work  was 
done  nor  certificate  filed  for  1893,  would  hold  the 
claim  if  it  had  not  been  in  the  meantime  relocated. 
The  act  of  filing  the  certificate  provided  for,  was  ac- 
cepted by  the  statute  the  same  as  the  performance  of 
the  work  and  if  filed  at  any  time  during  the  period 


ANNUAL  LABOR  ON  PLACERS.  113 

allowed,  would  prevent  a  lawful  relocation  of  the 
claim  by  third  parties. 

There  can  be  no  forfeiture  for  failure  of  co-tenant 
to  contribute  his  proportion  of  expenditure  for  1893, 
when  he  has  filed  the  certificate  allowed  by  the  Act, 
even  where  the  work  had  been  done  before  the  Act 
was  passed.  There  is  no  vested  interest  in  a  right  to 
enforce  a  penalty. — Royston  v.  Miller,  16  F.  50. 

When  the  Ground  is  in  Litigation  the  court  may 
appoint  a  receiver  to  see  that  the  work  is  performed 
and  a  forfeiture  prevented. — Nevada  Co.  v.  Home 
Co.  98  F.  ' 

It  is  not  contempt  of  a  mining  injunction  to 
perform  the  amount  of  labor  necessary  to  save  the 
claim  from  forfeiture  Peak  Mines  v.  Han 

chett,  20  M.  R.  19;  93  F.  16. 

A  party  made  a  new  location  over  an  older  claim 
which  he  afterwards  purchased.  Held,  that  the  work 
done  on  the  new  location  could  be  treated  as  annual 
labor  for  the  protection  of  the  older  title. — Johnson 
v.  Young,  18  Colo.  6SO. 


ANNUAL   LABOR   ON   PLACERS. 


Judicial  Rulings  As  to  Labor  on  Placers. 

The  question  of  annual  labor  on  placers  is  a  curi- 
ous instance  of  the  growth  of  law  by  following  the 
first  judicial  oversight  as  a  precedent  until  the  wrong 
interpretation  is  firmly  rooted  as  the  true  one.  By  no 
fair  construction  of  the  Act  of  1872  could  it  be  ap- 
plied to  anything  except  lode  claims.  The  very 
amount  of  the  labor  was  fixed  by  the  number  of  feet 
"in  length  along  the  vein."  But  in  1876,  in  Chapman 


H4  ANNUAL  LABOR  ON  PLACERS. 

v.  Toy  Long,  4  Sawy.  28;  1  M.  If.  //>?.  placers  were 
referred  to  incidentally  as  subject  to  the  labor  law. 
In  Jackson  v.  Roby,  109  U.  8.  4W,  without  argument, 
the  same  dictum  was  expressed.  Later,  in  Carney  v. 
Arizona  Co.  65  Gal,  JtO,  the  point  was  definitely  made 
as  to  whether  such  labor  was  required  on  placers, 
and  the  Supreme  Court  of  California,  basing  their 
opinion  on  the  force  of  the  general  terms  of  §  2329 — 
a  section  enacted  two  years  prior  to  the  annual  labor 
section — sustain  the  affirmative  of  the  proposition. 
In  Sweet  v.  Webber,  1'  Colo.  443,  the  precedents  thus 
established  were  followed  without  reference  to  the 
original  statute. — Morgan  v.  TiUotson,  15  P  88. 

A  single  record  of  a  placer  claim,  whether  of  i!" 
acres  by  one  person  or  160  acres  by  eight  pera 
is  a  full  claim  and  requires  $100  annual  expenditure 
to  protect  it  and  $500  to  patent  it.  In  other  words 
a  20  acre  claim  requires  as  much  annual  labor  and 
patent  expenditures  as  a  160  acre  claim. 

The  Forms  of  affidavit,  notice  and  proof  of  for- 
feiture given  for  lode  claims  will  apply  with  obvious 
alterations  to  placers. 

Void  State  Legislation. 

In  1879  the  Legislature  of  Colorado  passed  an 
Act  fixing  the  amount  of  annual  labor  on  pla- 
cers, altering  the  period  during  which  it  was  to 
be  performed,  and  providing  for  forfeiture  of  the 
delinquent  co-owners'  interest.  It  was  declared  in 
conflict  with  the  Congressional  Act  in  attempting 
to  lessen  the  annual  expenditure  in  Sweet  v.  Webber, 
?  Colo.  443-  It  is  obviously  so  in  its  attempt  to  inter- 
fere with  the  beginning  and  end  of  the  annual  period. 
All  the  other  provisions  of  the  section  are  superflu- 
ous where  they  agree  with  the  Act  of  Congress  and 
nugatory  where  they  conflict  with  it. 


FORFEITURE  TO  CO-OWNER.  115 


Special  A.  C.  as  to  Group  Oil  Claims. 

That  where  oil  lauds  :uv  located  under  the  provi- 
sions of  title  thirty-two.  rhapter  six,  Revised  Statutes  of 
the  United  States,  as  placer  minim:  claims,  the  annual  as- 
sessment labor  upon  such  claims  may  be  done  upon  any  one 
of  a  group  of  claims  lying  contiguous  and  owned  by  the 
"  person  or  corporation,  not  exceeding  five  claims  in  all : 
r>-<,ri<l«l.  That  said  labor  will  tend  to  the  development  or 
to  determine  the  oil-bearing  character  of  such  contiguous 
claims.--  ]'•  >..  i :  .s'f.  L.  825. 


FORFEITURE    TO    CO-OWNER. 

By  Failure  to  Do  Annual  Labor — Notice. 

K.  S.  B0C.  -•"•-'!  *  *  *  — Upon  the  failure  of  any 
one  of  several  co-owners  t<>  contribute  his  proportion  of  the 
expenditures  required  hereby,  the  co owners  who  have  per- 
formed the  labor  or  made  the  improvements  may.  at  the 
expiration  of  the  year,  give  such  delinquent  co-owner  per 
sonal  notice  in  writing  or  n<»iire  l>y  publication  in  the  ne\\s 
paper  published  nearest  the  claim,  for  at  least  once  a  week 
for  ninety  days,  and  if  at  the  expiration  of  ninety  days 
alter  such  notice  in  writing  or  by  publication  such  delin- 
quent should  fail  or  refuse  to  contribute  his  proportion  of 
the  expenditure  required  l.y  this  section,  his  interest  in  the 
claim  shall  become  the  property  <>r  his  c-i  «•  \\ners  who  have 
made  the  required  expcndiiii!  <  l  r.  Mai/  to,  1K72. 

Expenditures  in  Excess  of  the  Statutory  Amount. 

Although  one  co-owner  has  expended  more  than 
enough  to  hold  the  claim,  the  delinquent  co-owner, 
to  save  forfeiture  under  the  Act  of  Congress,  is  only 
required  to  pay  or  tender  his  proportion  of  the 
amount  which  the  law  required  to  be  expended  upon 
the  claim. 

The  recovery  of  his  proportion  of  additional  ex- 
penditures depends  upon  other  grounds,  and  is  to  be 
enforced  only  by  judicial  proceedings,  involving  the 
question  of  mining  partnership,"  or  the  expressed  or 
implied  assent  of  the  co-owner  to  the  expenditure  of 
the  additional  amount. — 5  L.  0.  4>'  Neuman  v.  Drei- 
furst,  9  Colo.  228;  McCord  v.  Oakland  Q.  Co.  64  Gal. 
134;  49  Am.  R.  689.  The  distinction  is  clearly  ex- 
pressed in  Holbrooke  v.  Harrington,  36  P.  365. 


lit;  FORFEITURE  TO  CO-OWNER. 

If  There  Are  Three  Owners  and  One  Performs 
all  the  labor,  and  gives  notice  to  his  co-owners,  and 
one  of  them  pays  his  proportion  and  offers  to  pay 
one-half  and  join  in  the  division  of  the  forfeited  inter- 
est of  the  third  party,  we  apprehend  the  second  party 
may  refuse  such  proposition.  The  forfeiture  accrues 
solely  to  him  who  has  performed  the  labor. — 31  L.  D. 
178. 

Estoppel. 

When  a  co-owner  is   delinquent,   but  the    pany 
who  has  made  the  expenditure  afterwards  assooi; 
with  him  in  developing  the  claim,  it  would  probably 
be  considered  a  waiver  of  the  forfeiture. 

Preservation  of  Proof. 

The  presumption  in  law  is  always  against  for 
feiture,  and  the  party  who  asserts  it  must  be  pre- 
pared to  make  his  proof  in  such  case. — Turnr,  c . 
Sawyer,  150  U.  8.  578;  11  M.  R.  683. 

Amount  and  Place  of  Expenditure. 

Where  a  forfeiture  notice  covered  two  claims  it 
was  held  void  for  not  stating  the  "amount  of  money 
spent  upon  each  claim  nor  the  facts  which  might 
cuse  expenditure  upon  each  claim" — Haynes  v.  J: 
coe,  67  P.  156.     The  clause  in  italics  we  apprehend 
refers  to  the  possible  case  of  group  work  where  the 
full  amount  might  have  been  expended  on   a  single 
claim. 

Choice  Between  Personal  Service  and  Publication. 

If  the  demand  is  made  by  personal  service  of  the 
forfeiture  notice  the  delinquent  must  comply  within 
ninety  days  from  dajte  of  service.  If  publication  be 
made  the  forfeiture  is  not  complete  until  ninety  days 
after  the  last  publication. 

If  publication  be  attempted  it  can  not  be  turned 
into  personal  service  by  showing  that  copies  of  the 
paper  were  sent  to  and  received  by  the  party  in  de- 
fault.— Haynes  v.  Briscoe,  supra. 


FORFEITURE  TO  CO-OWNER.  117 

Nearest  Newspaper. 

As  to  what  is  the  "newspaper  published  nearest 
the  claim"  the  construction  followed  by  Sni  11  .  J.,  in 
Haynes  v.  Briscoe,  seems  to  be  clearly  right;  to  wit, 
that  it  means  nearest  in  a  direct  line,  and  not  by  the 
usually  traveled  route. 

Length  of  Publication. 

Publication  for  13  weeks  was  held  sufficient  in 
KMer  v.  Horseshoe  Co.  81  N.  W.  58<> ;  afl'd  l<i'f  U.  N. 

Proceedings  to  Enforce  Forfeiture. 

In  the  first  instance  file  the  usual  affidavit  of 
labor  performed,  in  the  form  given  on  p.  112. 

FORFEITURE   NOTICE.        (A) 

GEORGETOWN,  COLO.,  January  3,  1908. 

//.  7  i »./.•<  r: 

You  are  hereby  notified  that  I  have  expended  during 
ilu«  y«-ar  I'.*'. 7  orl(-  fofidred  <l»ll<im  in  labor  and  improve- 
ments upon  the  Corinne  Lode  Mining  Claim,  situate  on  Re- 
intlili(<in  Minuitnin  in  Griffith  Mining  District,  County  ot 
C/M/r  Crtekj  State  of  Colorado,  the  location  rrrtitirair  of 
whirh  is  found  of  record  in  book  20 f  page  tSS,,  in  the  office 
of  the  recorder  of  said  county,  in  order  to  hold  said  claim 
under  the  provisions  of  section  2324  of  the  Revised  Stat- 
utes of  the  rn  it  t'd  States,  and  the  amendment  thereto  ap- 
proved .January  '-1,  1880,  concerning  annual  labor  upon 
mining  claims,  being  the  amount  required  to  hold  said  lode 
for  the  period  ending  on  the  31st  day  of  December,  A.  D. 
r.t<»7.  And  if.  within  ninety  days  from  the  personal  service 
of  this  notice,  or  within  ninety  days  after  the  publication 
thereof,  you  fall  or  refuse  to  contribute  your  proportion  of 
such  expenditure  as  a  co-owner,  which  amounts  to  fifty 
dollars,  your  interest  in  the  claim  will  become  the  property 
of  the  subscriber,  your  co-owner,  who  has  made  the  required 
expenditure,  l>y  the  terms  of  said  section. 

J.\MI:S  II.  PERSHINO. 

If  the  demand  contained  in  this  Forfeiture  Notice 
js  not  complied  with,  within  the  prescribed  period,  it 
should  be  recorded  after  making  proof  of  its  service 
or  publication,  which  can  be  most  readily  done  by 
endorsement  upon  the  Notice  "A"  as  follows: 


118  FORFEITURE  TO  CO-OWNER. 


PBOOF    OF    FORFEITURE.        (B) 

STATE  OF  COLORADO,  County  of  Clear  Creek:  SB. 

James  H.  Pcrshiny,  being  duly  sworn,  saith  tli.it  !»•• 
served  the  within  forfeiture  notice  upon  Robert  II  // 
the  delinquent  co-owner  therein  nanu'd.  upon  the  /?///  day 
of  March,  A.  D.  1908,  at  said  county,  by  delivering  to  him 
a  true  copy  of  the  same  and  explaining  the  contents  th«'iv- 
of ;  and  that  the  said  Rnlnrt  II.  Tin  In  r  wholly  faih-d  to 
comply  with  the  demand  contained  in  said  notice  or  to  pay 
or  tender  his  proportion  of  said  expenditures  during  ""' 
period  of  ninety  days  after  said  date  or  at  any  time  since 
hitherto.  jAXBfl  II.  I'KKSH  IN... 

Sworn  and  subscribed  before  me  this  first  day  «»i 
July.  A.  I).  1908.  Jnhn  Tnimm. 

I  SEAL]  Notary    Public. 

The  above  form  completes  the  proceeding  where 
the  notice  has  been  personally  served,  but  where  it 
has  been  by  publication,  discard  the  form  "B"  ;m<l 
use  the  following  "C"  and  "D." 

I'K '  "r   i'i  P.M.  iTION.       (C) 

STATE  <»r  ( ••U.MUADO,  County  of  rimr  (',•>/, 

(Copy  of  JVoffcc  "A"  Att<n-lmi.\ 

Je#x<  Knmliill,  being  duly  sworn  saith,  that  ln»  is  ih»« 
publisher  of  the  Qcnrin  tun  »  UOMrter.  ,-i  \\t-rkly  IH-\\ -spapt-r 
published  in  said  county,  and  that  s.-ii<l  Georgetown  Courier 
is  the  newspaper  published  nearest  to  s;iid  r, ,,/,,„,  L...I, 
(Maim,  and  that  the  above  notice  was  puhlish»'<l  in  said 
pa]M>r  foiirtcrn  successive  weeks.  th«'  first  puldicat  ion  ap 
]M'ariii^r  in  the  issue  of  Janmirn  7.  /'"^.  and  the  lust  puMi 
.atiou  in  the  issue  of  April  8,  1908. 

JBMl   KANOAJ.I.. 

Sworn  and  subscribed  IH-I'IH-I-  nu-  this  ti-iith  day  oi 
Altril,  A.  D.  1908.  ,/nhi,  Toman. 

[SEAL]  Notary    Public. 

Upon  the  publisher's  proof  (C),  the  party  who 
has  done  the  work  will  endorse  his  affidavit  of  non- 
payment as  follows: 

AFFIDAVIT    OF    X«  >N -J'A  YMENT.        (D> 

STATE  OF  COLORADO,  County  of  Clear  <'>•>  < 

James  II.  1'ertfhiinj.  being  duly  sworn  saith  that 
Robert  H.  Tinker,  ihe  person  named  in  the  forfeiture  notice 
attached  to  the  within  proof  of  publication,  wholly  faihd 
to  comply  with  the  demand  contained  in  said  notice  or  to 
pay  or  tender  his  proportion  of  said  expenditure*,  during 


FORFKITl  'HE  TO  CO-OWNER.  119 

tin*  prriod  of  said  notice  «>r  witliin  ninety  «l:i\s  ili.'ivafter, 
..r  at  jiny  tiint-.  .1. \.MKS  II.  I'I.KSHING. 

S\v<»rn  and  subst-riltt-d  ln-fniv  m<>  this  tt  nth  day  «»t 
J ul ii.  A.  D.  1908.  John  Totnnii. 

[SEAL]  Notary   ruMIr. 

These  forms  "A"  and  "B,"  in  cases  of  personal 
service,  and  "A,"  "C"  and  "D"  in  cases  of  advertise- 
ment, complete  the  forfeiture  and  place  its  proof  in 
a  shape  where  it  is  recognized  in  all  land  office  pro 
ceedings  as  the  equivalent  of  a  deed  from  the  delin- 
quent party;  but  when  the  forfeiture  has  to  be  proved 
in  court,  these  ex  parte  proceedings  would  not  be  rec- 
ognized, except  the  publisher's  proof  (if  this  proceed- 
in  ir  can  be  considered  as  an  advertisement  required 
by  law  i  which  is  in  Colorado  made  evidence  by  stat- 
in.' K  s.  $2503.  Similar  procedure  for  proof  of 
statutory  publication  is  provided  by  statutes  gen- 
erally. 

The  forfeiting  party  is  not  bound  by  law  to  make 
record  proof  of  the  forfeiture  except  as  it  may  be 
required  by  the  practice  of  the  Land  Office. — Riste  v. 
Morton,  w  P.  656. 

Minor  Heirs — Grouping  Notice. 

In  Elder  v.  Horseshoe  Co.  21  M.  R.  .5.10:  affii •//« •</ 
in  194  U.  8.  248,  it  was  held  that  the  failure  of  a  co- 
tenant  to  pay  for  his  share  of  the  work  was  a  breach 
of  the  condition  under  which  he  held  title;  that 
there  was  no  saving  of  the  rights  of  minor  heirs; 
that  a  notice  of  forfeiture  for  several  consecutive 
years  was  valid  and  that  it  was  optional  to  serve 
personal  or  publish  a  printed  notice  of  forfeiture. 

A  Party  Not  a  Co-Tenant  at  Time  of  Notice 
can  not  be  deprived  of  an  after  acquired  title  by  such 
notice.  Even  a  patent  procured  by  the  forfeiting 
title  will  stand  to  the  use  of  such  party. — Turner  v. 
Sawyer,  150  U.  8.  578;  17  M.  R.  683. 

The  attempted  forfeiture  is  a  void  proceeding 
where  his  share  of  work  has  been  in  fact  done  by 
the  co-tenant  alleged  to  be  in  default. — Brundy  v. 
38  P.  1061.  Or  where  the  forfeiting  co- 


120  RELOCATION  OF  ABANDONED  CLAIMS. 

tenant  did  not  in  fact  do  the  labor. — McKay  v.  Neus- 
sler,  148  F.  86;  Delmoe  v.  Long,  88  P.  778. 

A  forfeiture  notice  is  not  good  against  a  co- 
owner  not  named  in  the  notice. — BaUard  v.  Golob,  84 
Colo.  417;  83  P.  876. 

It  has  been  held  that  the  regularity  of  the  for- 
feiture can  not  be  questioned  by  third  parties  repre- 
senting a  title  hostile  to  the  claim  where  the  alleged 
forfeiture  to  co-owner  was  asserted. — Becker  v.  Pugh, 
11  Colo.  2',.i. 

If  a  co-owner  who  has  performed  the  labor,  sell 
his  interest  before  completing  forfeiture  proceedings, 
whether  his  assignee  can  forfeit  is  an  open  question; 
but  the  language  of  the  Turner  case  that  the  right 
is  limited  to  a  co-owner  who  has  performed  the  labor, 
would  seem  to  be  against  such  right. — See  SI  L.  D. 
178. 

But  in  Badger  Co.  v.   Stockton    ('<>.    i.w   F.   888, 
where  the  performing  co-owners  had  conveyed  their 
claim  to  a  corporation  taking  its  stock  for  considera- 
tion the  forfeiture  perfected  by  the  corporation 
upheld. 

In  Forderer  v.  Schmidt,  Ut3  F.  415.  a  friend  of 
the  party  who  was  being  advertised  out  offered  to  pay 
the  amount  due,  which  tender  was  approved  by  the 
party  as  soon  as  he  learned  of  it:  Held  that  the 
tender  defeated  the  forfeiture. 


RELOCATION  OF  ABANDONED  CLAIMS. 


Statutory  Regulation  of  Such  Relocation. 

R.  S.  Colo.  Sec.  4211. — The  relocation  of  abandoned 
lode-claims  shall  be  by  sinking  a  new  discovery  shaft  and 
fixing  new  boundaries  in  the  same  manner  as  if  it  were  the 
location  of  a  new  claim ;  or  the  re-locator  may  sink  the 
original  discovery  shaft  ten  feet  deeper  than  it  was  at  the 
time  of  abandonment,  and  erect  new  or  adopt  the  old 
boundaries,  renewing  the  posts  if  removed  or  destroyed.  In 
either  case  a  new  location  stake  shall  be  erected.  In  any 
case,  whether  the  whole  or  part  of  an  abandoned  claim  is 
taken,  the  location  certificate  may  state  that  the  whole  or 


RELOCATION  OF  ABANDONED  CLAIMS.  121 

any  part   of  tl»«>  IK  \v  location  is  located  as  abandoned  prop- 
.  1874. 

The  Old  Claim  Must  First  Be  in  Default. 

This  is  the  basis  of  the  right  to  relocate. — Oarthe 
r.  Hart,  13  Cal.  541;  15  M.  R.  492;  Lockhart  v.  Rol- 
linfi.  !1  r.  //.;/  16  M.  R.  16.  Two  locations  can 
not  legally  occupy  the  same  space  at  the  same  time. 
—Porter  v.  Tonopah  Co.  133  F.  756. 

Admits  a  Prior  Hostile  Claim. 

Where  the  record  on  its  face  purports  to  be  a  re- 
location of  the  claim  of  a  stranger,  this  amounts  to 
an  admission  that  the  old  claim  had  once  a  legal 
existence,  and  an  assertion  that  it  has  become  open 
to  forfeiture.— Wills  v.  Blain,  20  P.  798;  Shattuck 
v.  Costello,  68  P.  529.  The  burden  of  proof  is  upon 
the  relocator. — Providence  Co.  v.  Burke,  57  P.  (i  /  / . 

-  |   r.   \  anina,    /•>'/  /•'.  (HO. 

The  term  "relocation"  implies  that  there  was  a 
former  location  and  the  use  of  the  word  estops  the 
user  to  deny  a  valid  prior  location. — Jackson  v.  Prior 
Hill  M.  Co.  (8.  Dak.)  104  X-  W.  207;  Slothower  v. 
Hunter.  88  P. 

Form  and  Manner  of  Eelocation. 

In  the  relocation  of  abandoned  claims,  the  party 
locates  and  records  with  the  same  particularity  as 
in  making  an  original  location  or  record.  The  only 
practical  distinctions  are  that  he  may,  if  found 
standing,  adopt  the  stakes  of  the  old  claim.  And 
his  discovery  shaft  may  be  by  sinking  the  old  one 
deeper.  He  has  the  same  rights  as  an  original  dis- 
coverer, although  not  in  strictness  a  discoverer  at  all. 
—Armstrong  v.  Lower,  6  Colo.  393;  15  M.  R.  631; 
Pelican  Co.  v.  Snodgrass,  9  Colo.  339. 

It  has  been  held  that  a  relocation  can  not  be 
made  on  a  blind  working — a  drift  which  has  been  run 
underground  from  the  bottom  of  the  shaft  on  an  ad- 
joining claim. — Little  Gunnell  Co.  v.  Kiinber,  1  M.  R. 
536.  See  page  44. 


122  RELOCATION  OF  ABANDONED  CLAIMS 

The  fact  of  improvements  already  on  the  ground 
does  not  lessen  the  labor  required  from  the  relocator; 
he  must  do  the  required  amount  of  sinking,  usually 
ten  feet,  on  the  old,  or  on  a  new  discovery  shaft; 
must  erect  a  new  location  stake  or  at  least  change 
the  notice  on  the  old  stake  and  must  re-stake  the 
claim  unless  he  adopts  exactly  the  lines  and  bound- 
aries of  the  old  location. 

The  stakes  of  the  old  claim  may  be  adopted  as 
the  stakes  of  the  new. — Conway  v.  Hart.  >'».'  1*.  //;  ..'/ 
M.  R.  20.  Brockbank  v.  Albion  Co.  81  P.  863. 

But  in  Moffatt  v.  Blue  River  Co.  80  P.  I .;/'. 
and  Miller  v.  Chrisman,  13  P.  108.i,  where  in  cadi 
instance  an  attempt  had  been  made  to  jump  a  valid 
prior  claim  in  the  actual  possession  of  its  owner  by 
adopting  its  stakes  and  filing  a  record  on  the  boun- 
daries set  by  the  first  party  the  second  attempted  loca- 
tion was  held  a  vain  proceeding. 

The  relocator  must  set  new  posts  or  at  all  events 
must  see  that  his  boundaries  are  established  on  the 
ground.  Where  the  old  stakes  are  taken  they  should 
be  marked  with  the  new  name. 

A  secon'd  party  has  a  right  to  enter  upon  ground 
although  he  knows  of  an  attempted  prior  location 
upon  it,  if  such  prior  location  be  fatally  defective. — 
Brown  v.  Oregon  Co.  110  F.  728;  Deeney  v.  Mineral 
Co.  67  P.  72.}.  But  if  he  enters  as  a  relocator  he  can 
not  assert  defects  in  the  original  notice.  Yosemite 
Co.  v  Emerson,  28  8.  C.  If.  /.%'. 

No  Connection  With  the  Old  Title. 

The  relocator  has  no  rights  by  relation  to  the 
date  and  priority  of  the  title  which  he  has  destroyed 
by  his  relocation. — Cheesman  v.  Shreeve,  Jfl  F.  7  >'.'': 
11  M.  R.  260. 

Reference  in  Location  Certificate  to  Old  Title. 

By  statute  in  several  States  in  the  relocation  of 
forfeited  or  abandoned  claims,  the  location  certificate 
is  required  to  state  if  the  whole  or  any  part  of  the 
new  location  is  located  as  abandoned  property.  In 
Montana  and  Nevada  such  requirement  is  permissive, 


RELOCATION  OF  ABANDONED  CLAIMS.  I-1- 

but  if  relocation  is  made  by  sinking  the  original  dis- 
covery shaft  deeper,  the  location  certificate  in  the 
latter  State  must  give  the  depth  and  dimensions  of 
the  original  shaft  at  date  of  relocation. 

Cunningham  v.  Pirrung,  80  P.  329.  rightly  ad- 
judged that  the  Arizona  Statute  had  no  application 
where  the  prior  location  was  not  in  fact  a  valid  one. 
But  it  went  further  and  said  that  the  burden  of  proof 
was  on  the  second  location  to  show  that  the  over- 
lapped prior  location  was  not  valid.  Except  where 
by  estoppel  or  from  the  pleadings  there  is  an  adniis 
sion  of  the  existence  of  a  prior  and  once  valid 
claim  we  ran  not  see  why  such  burden  should  be  so 
shifted. 

In  Matko  v.  Daley,  85  P.  721,  the  Arizona  SU- 
IT* me  Court  held  the  record  void  for  such  non-recital, 
but  in  Kinney  r.  Lundy,  80  P.  //.%*,  qualified  the  rul- 
ing to  make  it  voidable  only  and  therefore  open  to 
amendment.  The  statute  itself  was  repealed  in  1907. 

The  Act  requiring  such  recital  does  not  require 
mention  of  a  location  never  completed. — Paragon  Co. 
v.  Stevens  Co.  (Wash.)  87  P.  J068. 

All  such  statutes  are  useless  and  produce  only  em- 
barrassment. A  prospector  finding  old  works  or  no- 
tices may  be  in  entire  ignorance  as  to  whether  they 
represent  a  perfected  claim  or  an  unperfected  pros- 
pect. 

Where  the  language  of  such  statutes  will  possibly 
permit,  they  ought  to  be  held  directory  merely,  not 
mandatory,  and  thus  no  loss  of  title  from  non-com- 
pliance would  follow. 

Re-Entry  by  Original  Owner. 

After  the  annual  period  has  expired,  the  old 
claimant  has  still  the  first  right;  but  if  he  has  com- 
menced work  before  another  party  enters,  he  must 
complete  the  full  amount  required  with  reasonable 
diligence,  as  otherwise  the  claim  would  remain  for- 
feit.— Honaker  v.  Martin,  21  P.  391.  And  after  the 
relocator  has  entered  he  has  the  right  to  maintain  his 
possession. — Morgan  v.  TiUottson,  l,t  Cal.  ~>to. 


124  RELOCATION  OF  ABANDONED  CLAIMS. 

In  Field  v.  Tanner,  75  P.  916,  a  party  at- 
tempted to  relocate  for  failure  of  owner  to  do  his 
annual  work.  After  his  purported  relocation  the 
owner  re-entered  and  did  the  work  and  recovered 
because  of  defects  in  the  relocation,  to  wit:  shortage 
in  the  depth  of  the  discovery  shaft. 

When  the  Original  Owner  Had  Begun  Work 
before  the  expiration  of  the  year  and  so  being  not 
yet  entirely  in  default  was  at  work  on  December  31st 
— an  entry  by  a  relocator  on  January  1st  (a  Sunday) 
or  on  January  2  (a  legal  holiday)  will  not  initiate  a 
valid  claim.— M cNeil  v.  Pace,  8  L.  D.  :> '>:.  />e  v. 
Durham,  121  F.  468. 

Relocating  Instead  of  Resuming. 

In  Warnock  v.  De  Witt,  .'/0  P.  2(9,7,  the  Supreme 
Court  of  Utah  decide  in  terms  that  an  owner  may 
allow  his  claim  to  be  in  default  as  to  annual  labor 
and  then  renew  his  monuments,  file  a  new  record 
and  hold  under  such  second  location.  It  cites  the 
case  of  Hunt  v.  Patchin,  35  F.  816,  as  upholding 
such  relocation.  This  Hunt  case  was  a  controversy 
between  co-owners  where  the  rights  of  strangers  or 
of  a  hostile  title  were  not  involved  and  does  not  jus- 
tify the  citation. 

The  law  requires  the  owner  to  do  a  certain 
amount  of  work  within  a  certain  period.  It  allows 
him  the  indulgence  of  retaining  his  old  title  if  he 
re-enters  and  resumes  work  either  during  such  pe- 
riod or  during  the  next  year  before  another  has  en- 
tered. To  allow  him  from  year  to  year  to  renew  his 
monuments  and  file  new  records  would  result  in 
wholly  defeating  the  intent  of  the  law.  We  think 
that  there  is  an  implied  distinction  between  his 
rights  and  the  rights  of  others  in  such  a  case.  He 
has  forfeited  the  right  to  locate  that  ground  by  virtue 
of  his  default  in  not  living  up  to  his  assumed  obliga- 
tion to  follow  up  his  location  by  labor  in  good  faith. 
The  claim  is  open  to  relocation  by  all  citizens  bar- 
ring the  one  whose  default  is  the  occasion  of  its  be- 
ing open  and  his  only  rights  are  those  conferred  on 
him  by  the  Statute  to  wit:  the  right  to  resume  and 


EDVV     '   J.   COLLINS. 

RELOCATION  OF  ABANDONED  CLAIMS.  125 

perform.      Mr.    Lindley    fully    coincides    with    these 
vi.'ws.— /  Lind.  $ 

There  is  a  legislative  construction  to  the  same 
effect  by  the  insertion  at  the  proper  context  of  the 
words  "open  to  location  by  others"  in  the  Special  Act 
concerning  Annual  Labor  on  claims  in  Alaska.  P. 
502. 

Relocation  After  Patent  Applied  For. 

In  South  End  M.  Co.  v.  Tinney,  85  P.  89.  a  lode 
had  applied  for  patent  and  completed  its  publication, 
but  considerable  delay  ensued  without  entry  and  the 
annual  labor  was  not  kept  up.  During  this  period  a 
relocation  was  made.  Afterwards  the  applicant  com- 
pleted his  entry,  but  it  was  held  that  the  relocation 
title  was  valid  and  that  the  patentee  took  the  pat- 
ent in  trust  for  the  true  owner,  the  relocator.  There 
would  seem  to  be  no  doubt  that  the  annual  labor 
must  be  kept  up  until  actual  entry,  but  whether  other 
courts  will  go  to  the  extreme  of  this  holding  is  not 
to  be  assumed.  MUKPIIY,  C.  J.,  dissented,  as  did  BEL- 
KNAP.  J.,  in  part.  Nee  page  98. 

In  Land  Office  proceedings  the  party  asserting  a 
relocation  must  prove  an  abandonment  of  the  orig- 
inal claim. — 21  L.  D.  219.  Or  the  original  application 
may  be  cancelled  for  laches.  See  page  467. 

Overlapping  Senior  Claim. 

It  has  been  held  that  the  filing  of  amended  cer- 
tificate giving  such  bounds  as  include  the  interfer- 
ence of  a  prior  survey  which  has  failed  to  have  its 
annual  labor  performed  operates  as  a  relocation  of 
siirh  abandoned  overlapping  area  without  specific 
mention  of  such  being  the  intent  of  the  amendment. 
— Johnson  v.  Young,  18  Colo.  625.  See  page  108. 

Where  the  Court  had  decided  that  neither  claim- 
ant to  the  mine  had  title,  a  relocation  by  one  of  the 
parties  after  such  adjudication  was  held  valid. — Lau- 
man  v.  H offer,  19  P.  953. 

Eelocation  of  Abandoned  Claim  by  Co-Tenant. 

Where  the  several  owners  of  a  claim  have  al- 
lowed the  annual  period  to  expire  without  doing  the 


126  RELOCATION  OF  ABANDONED  CLAIMS 

annual  labor,  it  has  been  asserted  that  any  one  of 
them  may  enter  upon  the  ground  and  relocate  the 
claim  in  his  own  name,  leaving  out  his  former  co- 
tenants.  The  Statute  says  that  after  the  year  has 
expired  without  the  labor  being  done,  the  claim 

"Sh.Mll  be  open  to  relocation  in  tlu-  s.-nnc  manner  as  if  no 
locution  of  tin-  sMiiH-  h:ul  «-V«T  been  made." — It.  S.  Sec.  tSZk. 

But  these  words  are  immediately  followed  by  a 
proviso  which  seems  to  make  a  distinction  between 
the  rights  of  the  old  owners  and  the  rights  of  stran- 
gers, and  there  is  an  inherent  distinction  arising 
from  their  joint  ownership.  It  is  certain  that  if  all 
the  owners  return  to  the  claim  their  title  would  relate 
back  to  the  original  discovery;  and  it  is  also  a  rule 
of  law  that  a  tenant  in  common  can  not  rightfully 
do  any  act  which  is  subversive  of  his  co-tenant's  title, 
and  quite  as  certain  that  if  he  were  allowed  to  relo- 
cate as  a  stranger  he  must  yield  his  prior  claim  abso- 
lutely, and  proceed  in  all  particulars  as  an  entire 
stranger. 

The  question  has  been  set  at  rest  by  repeated  de- 
cisions that  any  relocation  or  attempted  relocation 
made  by  a  co-tenant  is  for  the  benefit  of  the  common 
title  and  one  co-tenant  cannot  by  recording  in  his 
own  name  oust  his  co-tenants. — McCarthy  v.  Speed, 
77  N.  W.  590;  Yarwood  v.  Johnson,  10  P.  123;  PerelU 
v.  Candiani,  71  P.  537. 

In  Saunders  v.  Mackey,  6  P.  361.  a  co-owner 
had  agreed  to  see  the  work  done;  he  did  not  do  it, 
and  afterwards  was  a  party  to  a  relocation.  The 
court  held  that  the  failure  operated  to  defeat  the  old 
location,  and  that  the  relocation  was  valid;  but  in- 
timated that  in  a  proper  action  the  party  who  had 
so  violated  his  agreement  would  be  declared  to  hold 
the  title  in  trust.  A  very  like  case  was  Doherty  v. 
Morris,  11  Colo.  12,  where  the  same  ruling  was  made 
and  the  breach  of  trust  not  considered  on  the  plead- 
ings. In  Royston  v.  Miller,  16  F.  50,  it  was  more 
broadly  held  that  a  co-tenant  so  acting  could  take  no 
advantage  of  his  relocation.  But  it  requires  no  de- 
cision to  say  that  if  a  co-owner  promise  to  do  the 


RELOCATION  OF  ABANDON  KI>  CLAIMS.  lL'7 

assessment  work  and  fail  so  to  do,  or  if  he  do  it  and 
deny  it  and  collude  with  a  third  party  to  relocate 
(as  was  the  fact  in  the  Morris  case)  whatever  title 
he  so  by  fraud  obtains  must  enure  to  the  good  of  the 
injured  party.  In  the  Morris  case,  the  actual  doing 
of  the  work  was  made  apparent  on  the  final  trial. — 

'   85;  11  Colo.  105. 

The  case  of  frmeood  v.  Johnson,  10  Pac.  123, 
was  much  like  the  Morris  case  in  its  facts.  Plain- 
tiff alleged  that  defendant,  a  co-tenant,  agreed  to  do 
the  work  and  did  it  Defendant  had  relocated,  using 
his  brother's  name,  as  soon  as  the  year  expired.  The 
Court  held  that  if  the  work  had  been  done  the  re- 
location was  void  of  course,  but  they  further  broadly 
and  rightly  held  that  any  relocation  made  by  a  co- 
tenant  was  for  the  benefit  of  the  common  title. 

The  case  of  Turner  v.  Sawyer,  150  U.  8.  57N.  fj 
M.  R.  68,1,  lays  down  the  true  principle  applicable  to 
the  point,  to  wit:  that  the  co-tenant  cannot  acquire 
and  hold  adversely  a  hostile  title  without  allowing 
opportunity  to  co-tenant  to  pay  his  proportion  of  the 
cost  and  take  the  benefit  of  the  same,  and  that  per- 
fecting patent  was  the  purchase  of  such  a  title. — 

xftenbach  v.  Bank,  Jtl  N.  W.  662;  Mills  v.  Hart,  24 
Colo.  505:  Stevens  v.  Or.  Cent.  Co.  158  F.  28;  Delmoe 
v.  Long,  88  P.  118. 

A  co-owner  attempting  to  relocate  in  his  own 
name  so  as  to  oust  his  associates  from  the  title  does 
not  abandon  his  claim  to  the  ground  nor  forfeit  by 
estoppel  his  undivided  interest  in  the  original  claim. 
—HuUt  v.  Doerstler,  15  N.  W.  210. 

Other  Instances  of  Fiduciary  Relation. 

The  owners  mortgaged  their  claim,  abstained 
from  doing  the  annual  labor,  and  after  the  year 
elapsed,  relocated. — Held,  that  they  could  not  so  de- 
feat the  mortgage. — Alexander  v.  Sherman,  JO  P.  'i~> : 
I.',  M.  if. 

The  grantoi   by  quit-claim   deed   is  not  estopped 
to    relocate   when    his   vendee    fails   subsequently    to 
up  his  annual   labor. — Blake   v.   Thome,  10  P. 


128  RELOCATION  BY  OWNER. 

210.  For  attempted  relocation  by  vendor  after  sale 
see  Minah  Co.  v.  Briscoe,  89  F.  891. 

In  McDermott  M.  Co.  v.  McDermott,  69  P.  ",1.1. 
McDermott  had  sold  the  lode  to  a  company  in  which 
he  became  a  director.  Afterwards  the  company 
failed  to  do  its  work  and  the  claim  was  relocated 
by  a  third  party,  who  conveyed  it  back  to  McDer- 
mott. There  was  no  collusion  whatever.  The  com- 
pany had  quit  because  it  could  find  no  pay.  The 
Court  held  that  upon  abandonment  of  the  claim  by 
failure  to  do  the  labor  the  ground  reverted  to  the 
public  domain  and  the  relocation  was  an  independent 
new  title  having  no  connection  with  the  old  one. 

But  an  agent  or  other  party  in  a  fiduciary  capac- 
ity cannot  relocate  for  his  own  benefit. — Lockhart 
v.  Rollins,  21  P.  413;  16  M.  R.  16.  Nor  betray  the 
property  to  a  stranger. — Utah  Co.  v.  Dickert  Co.  '/ 
P.  1002.  Nor  can  a  hired  prospector  say  that  what 
he  has  turned  over  to  his  outfitter  is  his  own  by  a 
prior  title.— Fuller  v.  Harris,  29  F.  814. 

Lessees  cannot  take  their  lessor's  property  by 
going  through  the  form  of  a  relocation. — Lowry  v. 
Silver  City  Co.  179  U.  8.  196;  Brash  v.  White,  75 
P.  445. 

Where  all  the  others  have  conveyed  to  one  co- 
tenant  for  the  purpose  of  patenting,  any  relocation 
made  by  him  counts  for  the  benefit  of  his  associates, 
including  new  ground  taken  in  by  his  relocation. — 
HaUack  v.  Traber,  46  P.  110. 

A  Location  Made  by  an  Ex-Employe  is  not  void 
from  the  fact  that  his  knowledge  that  the  lode  had 
been  followed  into  vacant  ground  had  been  acquired 
while  working  for  the  owners  of  the  adjoining  pat- 
ent.— ThaUmann  v.  Thomas,  111  F.  277. 


RELOCATION  BY   OWNER. 


In  What  Cases  Owner  May  Relocate. 

R.  S.  Colo.  Sec.  4210. — If  at  any  time  the  locator  of 
any    mining    claim    heretofore    or    hereafter    located,    or    his 


RELOCATION  BY  OWNER.  129' 

-hall  apprehend  ihni  his  original  certificate  was 
defective,  erron<  ihat  the  requirements  of  the  law 
had  not  IMM-H  complied  with  before  tiling.  <>r  shall  be  de- 
sirous <>f  chan^inir  bis  surface  boundaries,  or  of  taking  In 
any  pan  .  ••rlapplni:  claim  which  has  been  aban- 
doned.  oi-  in  case  the  original  certiticate  was  made  prior  to 
the  passage  of  this  law,  and  he  shall  be  desirous*  of  secur- 
in.ir  the  benelits  of  this  an.  such  !"cat<>r.  <>r  his  assigns, 
may  file  an  additional  certificate,  subject  to  the  provisions 
of  this  act:  /'»•«*/ •/./«»/.  Thai  such  re-location  does  not  Inter- 
fere with  the  existing  riirhts  of  others  at  the  time  of  such 
relocation,  and  no  Midi  re  location  or  other  record  thereof 
shall  preclude  the  claim::nt  or  claimants  from  proving  any 
Midi  title  or  titles  as  h •  they  may  have  held  under  pre- 
vious location.—  ,v. '  / :.  /  , 

This  section  provides  an  escape  from  the  conse- 
quences of  loose  and  careless  records;  it  also  gives 
narrow  claims  th<>  opportunity  to  take  the  full  width 
allowed  by  the  later  law;  and  further,  in  case  a 
lode  is  found  to  be  not  contained  in  the  original 
boundaries,  it  allows  the  error  to  be  corrected.  All 
former  rights  are  secured  with  the  new  privileges, 
and  greater  certainty  obtained  under  the  relocation. 

In  a  relocation  under  this  section  the  name  of 
the  lode  should  not  ordinarily  be  changed,  and  the 

iflcate  should  show  that  it  is  a  relocation,  and  of 
what  lode. 

AMI:MU:I>  OB  Rfl  LOCATION  '  i:i:TIFICATE. 
K\<  \\  ALL  .MI:\  Bl  im:si:  n:i:si:\TS,  That  I,  Andrew 
•I.  iiniiiit  .t.  of  the  city  and  County  of  Denver,  State  of  Colo- 
rado, claim  by  ri.L'ht  of  relocation,  and  this  amended  certifi- 
cate of  location,  fiftn-n  fnnuh»<l  feet,  linear  and  horizontal 
measureiu'-nt.  on  the  i\,  ntit,-i:ii  I .o«ie,  along  the  vein  thereof, 
with  all  its  dips,  variations  and  angles,  together  with  one 
Ininilrnl  ami  fifiii  feet  in  width  on  each  side  of  the  middle 
id  vein  at  the  surface:  and  all  veins,  lodes,  ledges  and 
surface  Around  within  the  lines  of  said  claim;  750  feet  on 
said  lode  running  iim-Ui  10  degrees  cast  from  the  center  of 
the  discovery  shaft,  and  750  feet  running  south  10  degrees 
\\.si  from  said  center  of  discovery  shaft;  said  discovery 
shaft  being  situate  upon  said  lode,  within  the  lines  of  said 
claim,  in  Silver  c///r  Mining  District,  County  of  Custer, 
State  of  Colorado.  Said  claim  is  bounded  and  described  as 
follows:  r.e^inning  at  corner  No.  1  (etc.,  describe  as  in 
nriuhial  lortitinn  <»•  arrnraini.i  to  ll\r  tinr  lines,  if  changed, 

niul   ri,)!, -I  mh-    ns   follin 

I'.eing    the   same   lode    originally    located    on    the    first 
;    May.    A.    I>.    iv.'4.   and   recorded   on   the   first  day   of 
June.   A.    I).    iv.i4.   in   iin,,k  7.  i>n<n    //.  in  the  office  of  the  re- 
5 


130  RELOCATION  BY  OWN  Kit. 

corder  of  said  county.  This  furtliiT  certificate  of  location 
is  made  without  waiver  <-f  any  previous  rights,  but  to  cor- 
rect any  error  in  prior  location  or  record,  to  secure  all 
abandoned  overlapping  claims,  and  to  secure  all  the  benefits 
of  section  4210  of  tin-  IJ"\  is.-d  Statutes  ,,f  <  '..lorado.  l>ate 
of  relocation,  January  7.  I'.HIS.  Date  «.f  amended  certificate, 
.January  s,  I'.mx.  AM.I;I:\V  .1.  HUGHES. 

Nearly  all  the  mining  States  have  adopted  stat- 
utes similar  to  the  Colorado  Act  providing  for  the  re- 
location of  abandoned  claims,  for  relocation  by  the 
owner,  or  the  filing  of  amended  certificate  of  loca- 
tion. 

But  they  are  only  declaratory  of  the  right  which 
any  claimant  has  without  the  aid  of  any  such  statute 
to  amend  his  own  publication  of  claim. — Thompson  v. 
Spray,  12  Cal.  528. 

Same  Particularity  As  in  Original  Location. 

The  discovery  shaft,  side  and  corner  posts  should 
be  found  on  the  ground  before  any  second  record  is 
made,  and  if  the  amendment  changes  the  boundaries 
or  is  made  on  account  of  any  previous  mistake  or 
irregularity  in  any  act  of  location  the  same  should 
be  rectified  upon  the  ground  before  recording.  The 
description  in  the  new  certificate  will,  of  course,  cor- 
respond to  the  new  boundaries. 

A  new  location  stake  should  also  be  erected  at 
the  discovery,  if  the  length  or  width  called  for  on 
the  original  stake  is  altered,  and  especially  if  the 
name  of  the  claim  is  changed.  In  other  instances  the 
old  stake  could  be  considered  as  answering  all  pur- 
poses of  notice  the  same  as  the  old  discovery  shaft 
which  does  not  need  to  be  sunk  to  any  greater  depth 
if  it  has  already  the  legal  depth. — TonopaH  Co.  v. 
Tonopah  Co.  125  F.  390;  Becker  v.  Pugh,  11  Colo. 
246.  In  fact,  no  change,  whatever,  upon  the  ground 
is  necessary  if  the  original  location  was  perfectly 
regular,  and  the  only  idea  in  relocating  or  in  filing 
the  amended  certificate  is  to  formally  appropriate 
abandoned  interferences  or  to  correct  mistakes  in  the 
record. 


RELOCATION  BY  OWNER.  131 

When  admitted  in  evidence  both  the  original  and 
relocation  certificates  are  to  be  construed  together. 
— Duncan  v.  Fulton,  61  P.  2'//. 

The  Intent  of  the  Act  is : 

First,  to  provide  a  recognized  mode  of  relieving 
from  the  consequences  of  clerical  and  other  mis- 
takes; second,  to  give  to  old  locations  the  benefit  of 
the  additional  width  allowed  under  the  A.  C.  of  18V2, 
and  third,  to  allow  change  of  bounds,  where  the  old 
survey  was  found  to  vary  from  the  strike  of  the  lode. 
— Seymour  v.  Fisher,  16  Colo.  189. 

An  additional  or  amended  location  certificate  may 
be  filed  on  old  3.000-foot  claims  for  mere  purpose  of 
more  specific  description,  but  such  claim  can  not  In- 
crease its  width  and  at  the  same  time  retain  its  old 
length. 

A  relocation  certificate  is  good  for  all  purposes, 
although  it  does  not  state  that  it  is  filed  for  the 

ifir  purpose  material  to  the  suit.  It  will  take  in 
abandoned  overlap  although  intention  so  to  do  is 
not  expressed  on  its  face. — Carlin  v.  Freeman.  7.1 
P.  26;  Tonopah  Co.  v.  Tonopah  Co.  125  F.  390. 

After  Loss  of  Discovery  Shaft. 

Where  a  discovery  is  made  within  the  lines  of  an 
older  claim,  or  the  locator  suffers  his  discovery  to  be 
patented  by  a  hostile  location,  he  may  make  a  valid 
relocation  of  that  part  of  the  claim  which  remains 
to  him  upon  a  new  discovery  made  on  clear  ground. 
—Knrin  v.  Perego,  93  F.  609;  Silver  City  Co.  v. 
Lowry,  57  P.  11.  Affirmed  without  discussion  of  this 
point  in  Lowry  v.  S.  C.  Co.  179  U.  S.  196. 

In  Treasury  Co.  v.  Boss,  32  Colo.  27;  Vt  P.  888, 
where  a  new  discovery  shaft  had  been  sunk  to  get 
clear  of  patented  ground  on  which  the  original  dis- 
covery had  been  made  the  claim  was  held  valid,  al- 
though no  amended  location  certificate  had  been  filed 
and  no  notice  posted  at  the  new  discovery.  As  to  the 
latter  point  the  case  was  followed  in  Ferrum  Co.  v. 
McMillen,  32  Colo.  38;  74  P.  461. 


132  RELOCATION  BY  OWNER. 

But  the  ruling  that  such  shifting  of  discovery 
shaft  without  a  second  record  is  good,  is  a  dangerous 
precedent  to  rely  on. 

To  Reform  End  Lines. 

A  relocation  may  be  made  so  as  to  make  the  end 
lines  parallel  and  place  the  lode  in  position  to  claim 
extralateral  rights. — Tyler  Co.  v.  Last  Chance  Co.  II 
F.  848. 

Changing  Boundaries. 

A  claim  may  be  swung  at  right  angles  if  it  takes 
up  no  ground  to  which  rights  have  intervened. — Dim- 
can  v.  Fulton,  61  P.  244. 

Distinction    Between    Relocation    and    Amended 
Certificate. 

In  strictness  there  is  a  relocation  only  when 
some  change  is  made  upon  the  ground,  as  by  chang- 
ing length,  width  or  boundaries;  perhaps  also  when 
overlapping  abandoned  ground  is  taken.  The  certifi- 
cate filed  to  show  such  change  is  a  relocation  certifi- 
cate. But  if  the  error  is  in  the  papers  only,  as  by  a 
misleading  or  too  vague  description,  there  is  no  relo- 
cation, but  only  the  filing  of  an  amended  location 
certificate.  But  the  terms  are  not  always  used  with 
exactness  even  by  the  legal  profession,  all  such  papers 
as  well  as  acts  being  called  relocations  or  relocation 
certificates,  and  a  misuse  of  the  terms  is  not  generally 
material. — Cheesman  v.  Shreeve,  JfO  F.  789. 

An  amended  location  certificate  may  be  filed  after 
suit  commenced. — Strepey  v.  Stark,  7  Colo.  61  /. 

And  in  Butte  Co.  v.  Barker,  89  P.  304,  it  was 
admitted  in  evidence  though  not  filed  till  after  the 
trial  had  begun. 

Relation  Back  and  Intervening  Claim. 

It  relates  back,  where  adverse  rights  have  not  in 
tervened,  to  the  date  of  the  original  location. — Me- 
Ginnis  v.  Egbert,  8  Colo.  41;  15  M.  R.  329;  Strepey 
v.  Stark,  supra. 


RELOCATION  BY  OWNER.  133 

In  the  case  of  McEvoy  v.  Hyman,  25  F.  596; 
l~>  ^[.  If.  397,  and  in  Craig  v.  Thompson,  10  Colo.  511. 
the  amended  record  was  allowed  in  evidence  and  to 
affect  and  cut  out  intervening  claimants.  In  the  lat- 
ter case  the  intervening  claimant  was  treated  as  a 
trespasser  who  could  not  initiate  rights;  in  the  for- 
mer the  original  certificate  was  treated  as  a  defective 
but  not  as  a  void  instrument. 

The  same  ruling  was  followed  in  Cheesman  v. 
Shreeve,  40  F.  787,  stating  in  terms  that  an  amended 
record  related  back  to  the  date  of  the  original  record. 

In  the  Colorado  Statute  above  printed  there  is 
an  express  saving  of  intervening  rights.  But  such 
exception  is  superfluous  because  vested  rights  save 
themselves.  There  is  no  doubt  that  an  amended  rec- 
ord, the  land  office  entry,  the  patent,  every  successive 
incident  toward  perfecting  title,  relates  back  to  the 
first  step  taken  toward  obtaining  such  title.  But 
notwithstanding  what  might  be  gathered  from  the 
wording  of  the  decisions, to  such  effect  taken  alone, 
they  are  to  be  read  in  connection  with  the  fact  that 
the  doctrine  of  relation  cannot  be  invoked  to  work 
injustice  to  third  parties. — Gibson  v.  Chouteau,  18 
\\'aU,  101.  And  if  a  location  or  location  certificate 
was  so  defective  as  to  be  void,  or  so  irregular  that 
it  allowed  strangers  to  become  legal  locators  of  the 
same  ground,  in  such  cases  an  amended  certificate 
or  a  relocation  will  not  relate  back  so  as  to  cut  out 
such  intervening  locators. — Hall  v.  Arnott,  22  P.  ..'"" . 
Jordan  v.  Schuerman,  53  P.  579;  Deeney  v.  Mineral 
Co.  67  P.  724;  Morrison  v.  Regan,  67  P.  956;  Brown 
v.  Oregon  Co.  110  F.  728. 

New  rights  cannot  be  acquired  by  relocation  in- 
consistent with  the  intervening  rights  of  others. — 
Bunker  Hill  Co.  v.  Empire  8.  Co.  134  F.  268;  Butte 
Co.  v.  Barker,  89  P.  302. 

Where  Original  Record  Was  Voidable  Only. 

In  Moyle  v.  Bullene,  7  Colo.  App.  308,  the  very 
tenable  distinction  is  made  that  where  the  original 
location  certificate  was  so  "defective  as  to  absolutely 
fail  to  comply  with  the  statutory  requirements"  it 


134  RELOCATION  BY  OWNER. 

was  void  and  the  amended  record  would  not  relate 
back;  but  if  the  original  paper  was  only  lacking  In 
technical  detail  the  two  should  be  construed  as  of 
the  date  of  the  first,  and  both  construed  together  ac- 
cording to  the  doctrine  of  relation.  But  in  Frisholm 
v.  Fitzgerald,  53  P.  1109,  where  a  record  contained 
no  reference  at  all  to  a  natural  object  or  permanent 
monument  and  was  not  only  constructively  void  for 
non-compliance  with  the  Congressional  Act,  but  was 
declared  void  in  terms  by  the  Colorado  Statute,  the 
relocation  was  held  to  relate  back  to  the  original 
record  and  to  cut  out  an  intervening  title. 

The  opinion  in  the  case  is  peculiar  in  this,  that 
it  is  the  personal  view  of  one  judge,  and  both  of  his 
associates  refused  to  concur.  It  is  not  the  opinion 
of  a  Court,  and  therefore  has  no  obligation  as  a 
precedent  binding  the  nisi  prius  courts  of  that  state. 
Nothing  in  the  case  or  the^  reasoning  on  which  it  is 
based  shakes  our  conclusions  as  stated  in  the  pre- 
ceding paragraph,  and  we  consider  untenable  the 
proposition  that  any  amendment  can  cure  a  void 
record  as  against  an  intervening  location. 

Will  Not  Cure  Want  of  Discovery-. 

In  most  of  the  cases  above  cited  the  point  was 
one  of  objection  to  the  form  or  contents  of  the  orig- 
inal Location  Certificate — that  is,  to  the  papers  in 
the  case — not  the  merits  of  the  discovery  or  the  lo- 
cation proper,  but  in  Beats  v.  Cone,  62  P.  O.'fO,  there 
was  no  discovery  when  the  original  record  was  made. 
The  second  claimant  had  a  valid  discovery  before  the 
first  had  any  discovery,  and  the  court  held  that  the 
intervening  claimant  took  the  ground  and  that  tne 
subsequent  discovery  on  the  prior  claim  could  have 
no  relation  back. 

An  amended  location  made  by  a  party  who  has 
parted  with  his  title  will  not  be  recognized. — Gray 
Copper  Lode,  18  L.  D.  ;7..v;. 


RELOCATION  BY  (  »  \Y  N  BR.  135 

The  Official  Survey  Corrects  the  Errors  of  the 
original  location  and  its  stakes  and  corners  need 
not  IK>  identified  with  the  locator's  survey.  —  Howeth 

r.  Siilh'nyrr.    ',.',  ]>.  S',l. 


Changing  Names  of  Locators  on  Notices  —  Trans- 

fers Before  Record. 

After  a  record  is  made  based  on  a  valid  loca- 
tion, the  possessory  title  becomes  perfect  as  and  for 
and  subject  to  the  conditions  of  a  possessory  title. 
—Uu-illim  v.  DonneUun.  u:>  ('.  N.  ',:,  :  15  M.  If 
But  befon  record  it  is  not  unusual  for  prospectors 
to  settle  their  rights  among  themselves  by  the  prim- 
it  ivc  but  practical  method  of  adding  or  erasing 
names  from  the  discovery  notice.  Names  cannot  be 
so  erased  without  the  assent  of  the  parties  to  the 

ruction  of  the  right  vested  by  putting  them  there 
in  the  first  instance.  —  Thompson  v.  Spray,  12  Cal. 
528.  But  this  is  matter  of  complaint  only  by  the 
panics  injured  and  strangers  to  the  title  cannot 
take  advantage  of  such  things.—  Thompson  v.  Spray, 
xui>ra;  Omar  v.  Soper.  11  Colo.  380;  15  M.  /,'.  /.'"/. 

In  Doe  v.  Waterloo  Co.  10  Fed.  4,  it  was  held 
that  a  verbal  transfer  of  an  interest  in  a  title  not 
yet  recorded  was  valid  and  that  the  new  associate 
taken  in  by  the  prospector  could  complete  the  loca- 
tion for  their  joint  benefit. 

Where  new  parties  become  transferees  of  an  un- 
completed or  an  irregularly  completed  location  they 
have  the  right  to  perfect  the  record  in  their  own 
names.  —  Miller  v.  Chrisman,  13  P.  1083;  Tonopah  Co. 
v.  Tonopah  Co.  JJ5  F.  889. 

Change  of  Name  of  Lode. 

It  is  not  infrequent  by  filing  amended  location 
certificate  and  posting  amended  notice  on  the  claim, 

hange  the  name  of  the  lode.  —  Butte  Co.  v.  Barker, 
89  P.  302.  Where  names  such  as  decency  forbids 
have  been  placed  on  record  the  Land  Office  has  de- 
clined to  patent  the  lode  by  name.  In  such  instances, 
or  even  where  the  name  is  objectionable  only  for 


136  UNITED  STATES  PATENT. 

sentimental  reasons,  where  all  parties  interested  con- 
sent, a  change  of  name  is  certainly  legal. — Seymour 
v.  Fisher,  16  Colo.  197.  But  when  done,  as  it  has 
been,  in  instances,  preparatory  to  application  for 
patent  with  intent  to  mislead  and  forestall  an  antici- 
pated adverse  claim,  or  preparatory  to  intended  for- 
feiture publication,  there  could  be  no  stronger  cir- 
cumstance from  which  to  draw  the  inference  of 
fraud. 

The  Edith  lode  was  located  1,200  feet  in  length, 
Discovering  that  there  was  200  feet  of  vacant  ground 
the  Edith  owners  made  a  new  location  1,400  feet 
long,  calling  it  the  Kirby  lode.  The  Court  held  that 
the  second  location  was  a  relocation  of  the  first  and 
a  valid  claim. — Shoshone  Co.  v.  Rutter,  87  F.  SOI. 


UNITED  STATES  PATENT. 


Policy  of  the  Government  As  to  Mineral  Lands. 

The  policy  of  the  United  States  has  always  been 
to  pass  the  fee  simple  title  to  its  lands  to  the  ulti- 
mate purchaser,  but  to  encourage  offers  to  purchase 
from  settlers  and  improvers  only.  To  extend  this 
policy  into  a  system  of  land  tenure  it  first  gives  a 
general  license  to  prospect  and  discover  mineral 
value — passing  then  to  the  discoverer  the  sole  right 
to  possess  and  use,  and  finally  grants  the  title  in  fee 
after  due  proof  of  occupation  and  improvement. 

A  temporary  departure  from  this  rule  in  taking 
an  impolitic  royalty  from  the  miner,  was  made  in 
the  attempt  to  lease  the  lead  and  copper  lands  on 
the  Mississippi  and  Lake  Superior. — Lorimier  v. 
Lewis,  1  Morris  (la.)  253;  12  M.  R.  437. 

The  government  had  no  occasion  to  deal  with 
lands  containing  the  royal  metals  until  the  acquisi- 
tion of  California,  upon  which  event,  instead  of 
adopting  any  system  of  legislation,  it  merely  pre- 
served the  mineral  lands  from  sale  and  acquiesced  in 
the  asserted  rights  of  the  prospector  and  miner  until 
1866. 


UNITED  STATES  PATENT.  l:',7 

In  that  year  were  passed  the  first  of  what  are 
known  as  the  Mining  Acts,  now  embraced  in  Title 
32  of  the  Revised  Statutes.  This  was  followed  by 
the  Acts  of  1870  and  1872,  with  other  slight  amend- 
ments. 

The  ultimate  intent  of  these  Acts  is  to  pass  the 
fee  simple  to  the  discoverer  of  a  mine,  or  his 
grantees,  after  a  certain  amount  of  development  has 
been  made  upon  the  claim  and  until  final  entry  the 
locator  holds  by  a  possessory  title. 

Progression  of  Title. 

Title  becomes  initiate  by  discovery;  the  posses- 
sory title  is  complete  upon  location  and  record,  and 
is  maintained  from  year  to  year  by  compliance  with 
the  condition  of  annual  labor.  The  occupant  after 
$500  expenditure  has  the  right  to  buy  the  land  from 
the  United  States  by  entry  thereof  in  the  local  land 
office.  This  entry  entitles  him  to  receive  a  patent 
which  issues  later  from  the  general  land  office  at 
Washington. 

Title  After  Entry  and  Before  Patent. 

After  entry  in  the  land  office,  although  the  title 
is  still  technically  equitable,  it  amounts  practically 
to  the  legal  or  fee  simple,  because: 

First — The  receiver's  receipt  for  the  purchase 
money  is  evidence  of  title  in  the  purchaser,  with  or 
without  statute  to  such  effect. — Last  Chance  Co.  v. 
Tyler  Co.  61  *'.  558. 

Second — The  subsequent  issue  of  the  patent  fol- 
lows as  a  mere  ministerial  act,  except  where  some 
irregularity  has  occurred  in  the  application,  or  a 
protest  delays  or  prevents  issue. 

Third — Before  entry  is  allowed  the  time  for 
the  assertion  of  any  adverse  title  must  have  elapsed. 

Fourth — Upon  the  issuance  of  patent,  the  fee 
passes  to  the  purchaser,  and  the  title  relates  back  in 
all  cases  to  the  entry  at  least. 


138  UNITED  STATES  PATH NT 

Choice  of  Land  Systems. 

It  was  in  the  power  of  the  United  States  to  have 
adopted  any  one  of  several  different  systems  in  the 
disposition  of  its  mineral  lands;  but  at  some  stage, 
under  any  system,  a  decision  of  the  conflicting  equi- 
ties between  the  adverse  claimants  would  have  to  be 
reached. 

First — A  system  based  on  rectangular  surveys, 
upon  which  a  block  book  could  be  platted,  which 
would,  on  its  face,  establish  the  priority  of  any  as- 
sertion of  title  to  the  block  representing  any  certain 
mining  claim,  the  same  as  adopted  in  the  disposition 
of  agricultural  lands  by  quarter-sections. 

Second — A  system  under  which  every  applicant 
would  receive  a  patent  upon  an  ex  parte  proceeding 
without  regard  to  priority  or  adverse  rights,  leaving 
the  several  patentees  to  contest  their  equities  in  the 
courts  upon  an  equal  footing  analogous  to  the  old 
land  system  of  Virginia. 

Third — A  system  based  on  making  the  proceed- 
ing to  obtain  patent  a  proceeding  in  rent,  compelling 
the  applicant  to  give  notice  of  his  application  and 
forcing  an  adjudication  of  all  adverse  titles  before 
the  issue  of  the  patent,  which  was  the  Pennsylvania 
system. 

The  last  is  the  system  adopted  by  the  govern- 
ment, by  the  original  act  of  1866,  and  continued  in 
Jill  the  amendments. 

Priorities  Adjudicated  Before  Patent  Issues. 

The  result  follows  that  upon  the  issue  of  a  pat- 
ent the  patentee  has  got  rid  of  all  assertions  of  title 
hostile  to  his  own  title,  and  all  supposed  prior  dis- 
coveries and  locations  which  might  have  interfered 
with  him  are  lost,  by  failure  to  assert  them  as  ad- 
verse claims,  or  to  prove  them  in  the  ejectment  suit 
brought  in  support  of  the  adverse  claim. — Silver  Bow 
Co.  v.  Clarice.  5  P.  570;  Raunheim  v.  Dahl.  9  P.  892; 
Kannaugh  v.  Quartette  Co.  2?  P.  2-'/5;  Seymour  v. 
Fisher,  16  Colo.  191. 


UNITED  STATES  PATENT.  139 

The  publication  required  by  the  Mining  Acts  "is 
in  effect  a  summons  to  all  persons  whose  interests 
may  be  affected  by  the  issuance  of  a  patent,"  to 
appear  and  file  their  adverse  claims. — Wolfley  v.  Leb- 
anon Co.  4  Coin,  lit;  /.;  .U.  /,'.  W»;  Wii/ht  r.  Dubois, 
.'1  r.  693. 

The  Land  Department  Issues  the  First  Patent  to 
the  first  applicant,  without  regard  to  the  priority 
of  his  possessory  title,  and  in  case  the  senior  pos- 
sessory title  fail  to  assert  its  seniority  by  filing  and 
prosecuting  its  adverse  claim,  the  seniority  of  such 
possessory  title  is  lost,  and  yields  to  the  title  which 
the  government  issues  to  the  applicant  for  patent. 

Segregation  from  Public  Domain. 

The  Surveyor  General  shows  all  conflicts  with 
previous  surveys,  upon  the  approved  plat;  and  notes 
all  previous  official  surveys  in  the  approved  field 
notes;  but  only  approves  as  to  the  correctness  of 
the  survey,  not  excluding  the  area  of  priorities,  if 
their  inclusion  is  asked.  The  register  of  the  land  of- 
fice, when  application  for  patent  is  made,  is  supposed 
to  except  all  previous  surveys  as  noted  in  the  ap- 
proved field  notes  (where  such  surveys  have  been 
followed  by  applications  for  patent),  in  his  notice  for 
publication,  which  is  the  first  period  at  which  the 
officers  of  the  United  States  recognize  the  segregation 
of  the  claim  from  the  mass  of  the  public  domain. 
From  this  point  the  claim  so  first  segregated  must, 
under  the  practice  of  the  land  office,  be  recognized  by 
all  subsequent  applicants  for  survey  as  prior  in  point 
of  time,  and  they  are  compelled  to  except  from  their 
applications  such  previously  approved  surveys,  so 
duly  followed  by  filing  their  applications. 

Under  former  practice  the  segregation  took  place 
in  the  office  of  the  Surveyor  General.  But  the  Sur- 
veyor General  now  approves  everything  within  the 
exterior  boundaries  as  clear  ground,  to  the  applicant 
for  survey,  if  he  so  request,  leaving  to  the  land  office 
the  duty  of  excepting  from  his  entry  and  patent, 
prior  patents  and  applications  for  patent. 


140  UNITED  STATES  PATENT. 

Under  the  Act  of  1866  the  survey  was  not  ap- 
proved until  after  the  application  had  been  otherwise 
perfected. 

The  Doctrine  of  Relation. 

Where  successive  steps  are  essential  to  perfect 
title,  as  discovery,  location,  record,  application  for 
patent,  entry  and  finally  patent;  and  during  the  prog- 
ress of  the  time  required  to  complete  the  series  two 
hostile  parties  have  taken  some  or  all  of  these  steps 
towards  obtaining  title  to  the  same  ground — the  doc- 
trine of  relation  may  become  material  to  determine 
between  them  the  question  of  priority. 

When  discovery  is  followed  by  location  and  rec- 
ord within  the  proper  or  fixed  periods  allowed  and 
entry  and  patent  follow  in  due  course,  the  title  is 
considered  in  general  and  in  theory  to  relate  back 
to  discovery.  This  theoretical  relation  is,  of 
course,  of  no  materiality  unless  a  second  title  has 
intervened,  and  if  a  second  title  has  intervened  at  a 
period  when  the  first  title  was  in  default  the  doctrine 
of  relation  does  not  apply,  or  rather  it  favors  the 
second  title. 

A  patent  always  relates  back  to  date  of  entry  at 
least.  But  a  senior  entry  on  a  junior  application  will 
not  be  prior  to  the  entry  of  a  senior  application  when 
made,  because  relation  will  carry  the  junior  entry 
back  to  the  date  of  its  senior  application.  All  three 
items,  the  application,  the  entry  and  the  patent  are 
merely  successive  steps,  and  the  latter  two  relate  to 
the  date  of  the  first. 

Many  loose  assertions  are  found  in  the  cases  on 
this  topic  of  relation,  not  taking  into  consideration 
the  conditions  above  attempted  to  be  pointed  out. 
If,  in  all  cases,  a  patent  related  back  to  discovery,  a 
patent  of  to-day  on  a  location  of  1866  would  supplant 
a  patent  to  the  same  ground  issued  twenty  years 
ago.  Relation  never  applies  either  to  defeat  a  stat- 
ute or  to  work  manifest  injustice. 

In  Hickey  v.  Anaconda  Co.  81  P.  810,  the  Mon- 
tana Supreme  Court  refused  to  allow  the  law  of  re- 
lation to  carry  the  title  of  the  Nipper  lode  patent 


UNITED  STATES  PATENT.  141 

back  to  the  date  of  its  location  certificate,  a  paper  so 
defective  as  to  be  void. 

The  different  classes  of  claims  to  which  it  ap- 
plies necessitate  certain  distinctions. 

Where  Both  Are  Possessory  the  first  discovery 
followed  up  by  completed  location  within  the  al- 
lowed period  becomes  a  title  calling  back  to  date 
of  discovery,  and  by  the  doctrine  of  relation  will 
cut  out  a  possessory  title  completed  sooner  though 
initiated  later  than  the  first  discovery. — Patterson  r. 
Hitchcock,  S  Colo.  532;  J  .17.  /,'.  >;?.  For  instance,  if 
A  discover  a  lode  on  January  1st  in  a  State  which 
gives  60  days  to  sink  discovery  and  30  days  more  to 
record,  and  he  completes  sinking  on  the  60th  day  and 
records  on  the  90th  day,  he  has  an  older  and  better 
title  than  B,  who  discovers  the  same  vein  on  Jan- 
uary 10th,  but  promptly  completes  his  sinking  by  the 
20th  and  surveys  and  records  on  the  21st.  B  is  prior 
to  A  in  point  of  time  on  every  incident  of  location 
except  discovery,  but  A,  not  exceeding  his  statutory 
limit  of  time,  is  not  in  default  on  any  item  of  loca- 
tion, clearly  calls  back  to  January  1st  and  has  the 
older  and  better  possessory  title. 

If,  on  the  other  hand,  A  allows  any  of  his  periods 
to  expire  without  doing  the  act  for  which  the  law 
allowed  a  certain  time  and  the  second  title  becomes 
initiate  during  such  period  of  lapse,  the  doctrine  of 
relation  does  not  apply  and  B  has  the  older  and  bet- 
ter title. 

Patented  Claims — Failure  to  Adverse. 

Where  two  claims  overlap  or  cover  the  same 
ground,  and  one  of  them  applies  for  patent,  the  other 
must  adverse  and  maintain  its  adverse,  otherwise  it 
loses  all  pretense  to  priority;  and  if  it  fails  so  to  do 
and  afterwards  goes  to  patent  on  its  own  application, 
all  claims  to  priority  are  gone  and  it  cannot  appeal 
to  the  doctrine  of  relation  to  defeat  the  express  terms 
of  the  statute. — Eureka  Co.  v.  Richmond  Co.  4  Sawy. 

9  M.  R.  578. 


142  UNITED  STATES  PATENT. 

The  above  paragraph  refers  only  to  cases  where 
there  is  a  surface  conflict.  For  if  there  be  no  surface 
conflict  there  can  be  no  adverse  and  the  rule  has  no 
application, — Empire  Co.  v.  Bunker  Hill  Co.  llh  F. 
420. 

Thus,  in  the  class  of  cases  where  two  veins  par- 
allel on  surface,  dip  toward  each  other  and  are  found 
to  unite  going  down,  the  doctrine  of  relation  has  its 
full  application  and  title  will  be  carried  back  to  the 
date  of  location  and  if  necessary  to  the  date  of  dis- 
covery so  as  to  give  the  united  vein  to  the  title  first 
initiated  and  perfected  without  default  or  lapse. 

Applications  Pending  at  Same  Time. 

The  question  may  also  arise  between  two  claim- 
ants who  are  applying  for  patent  at  the  same  time. 

This  proceeding  begins  by  an  order  for  Survey, 
which  is  followed  by  the  survey  in  the  field 
and  by  its  approval  in  the  Surveyor  General's 
Office.  This  approved  Survey  or  the  date  of  its 
approval  determines  no  priorities.  It  is  only  when 
the  papers  reach  the  Land  Office  that  a  survey  be- 
comes "prior"  by  its  right  to  be  excluded  from  later 
applications,  and  the  applicant  whose  area  is  ex- 
cluded in  the  Land  Office  becomes  the  party  who  musi 
adverse  in  order  to  maintain  such  priority  of  title  as 
he  may  claim.— 26  L.  D.  81;  29  Id.  2>i>.  If  he  fail  to 
adverse,  his  patent  when  obtained  will  show  the 
ground  excluded  in  favor  of  the  party  who  was  first 
to  file  his  "application  for  patent"  (form  M.  ;>.  J.i.n . 
and  even  if  he  be  the  first  to  enter  and  pay  and  ob- 
tain the  Receiver's  Receipt,  the  entry  when  made  of 
the  Survey  which  first  filed  its  "application"  will  re- 
late back  to  the  date  of  such  filing. 

Double  Patent  Under  Different  Systems. 

It  may  become  material,  also,  in  any  case  where 
two  parties  hold  patents  for  the  same  ground,  which 
have  been  obtained  under  different  ex  parte  proceed- 
ings where  there  was  no  opportunity  to  adverse  and 
the  proceeding  therefore  not  a  proceeding  in  rem  as 


UNITED  STATES  PATENT.  143 

iii  a  conflict  between  Sphool  Land  and  a  mining 
v\nim.—Ht'!/'l<'nff1'lt  r.  Daney  Co.  93  U.  8.  634:  IS  M. 
/,'.  .'"/.  Or  between  a  lode  and  a  Town  Site. — Talbott 
v.  Kiny.  :>  r.  ).;/;  silver  Bow  Co.  v.  Clark,  5  Mont. 
The  Smoke  House  Lode,  12  P.  858.  Or  where  the 
same  ground  has  been  patented  to  one  as  a  lode,  to 
another  as  a  placer. — Iron  8.  Co.  v.  Campbell  / ..'  ~> 
U.  8.  286;  16  M.  R.  218. 

Excluded  Area. 

It  is  the  practice  of  the  department  to  exclude 
from  each  later  patent  all  claims  which  have  land 
office  priority  and  the  junior  patentee  has  no  right 
under  his  patent  to  follow  any  vein  on  its  strike 
through  the  area  reserved  in  favor  of  such  excluded 
survey. — Montana  Co.  v.  Boston  Co.  5t  P.  159.  And 
\*here  such  exclusion  plainly  appears,  and,  adhering 
strictly  to  the  ruling  in  the  case  just  cited,  it  can 
hardly  be  said  that  there  are  two  grants  of  the  same 
thing,  although  each  lode  patent  is  issued  on  the 
theory  that  it  covers  so  many  lineal  feet  on  the  vein. 

Where  a  conflicting  area  has  been  allowed  to  go 
to  a  senior  patent  it  does  not  make  that  patent  senior 
except  as  to  the  overlap. — U.  8.  M.  Co.  v.  Lawson. 
7J.J  /  : 

The  Nature  of  the  Merger  of  the  possessory  into 
the  patented  title  is  learnedly  discussed  in  /*/</«•/,• 
t7.  ElMnrn  CO.  ,  '.'  Affirmed  52  F.  859;  163 

U.  8.  445. 

What  It  Conveys. 

A  patent  covers  blind  lodes  within  and  under- 
neath its  lines. — Calhoun  Co.  v.  Ajax  Co.  59  P.  608; 
Affirmed  182  U.  8.  499.  The  surface,  and  the  right  to 
follow  on  the  dip  veins  apexing  within  its  lines. — 
Empire  Co.  v.  Bunker  Hill  Co.  114  F.  420.  The  sur- 
face although  the  vein  has  left  the  side  lines. — 
Argonaut  Co.  v.  Turner,  23  Colo.  400. 


144  UNITED  STATES  PATENT. 

Conclusiveness  As  to  Title, 

A  patent  is  conclusive  in  all  suits  at  law  (1) 
when  valid  on  its  face  and  (2)  when  not  issued  in 
opposition  to  law.  In  any  such  case  it  is  a  final  dis- 
position of  the  legal  title  and  must  be  recognized 
by  courts  and  allowed  such  effect. — Boggs  v.  Merced 
Co.  14  Gal.  219;  10  M.  R.  334.  It  is  also  conclusive 
as  to  the  bounds  or  limits  of  the  claim. — Waterloo 
Co.  v.  Doe,  56  F.  685.  Patent  is  conclusive  evi- 
dence that  there  had  been  a  sufficient  location  no- 
tice.— Chambers  v.  Jones,  42  P.  758;  that  a  valid 
discovery  and  location  had  been  made;  that  the  re- 
quired expenditure  showed  on  the  ground  and  that 
the  patentee  is  owner  of  all  veins  enclosed  by  his 
survey. — Carson  City  Co.  v.  North  Star  Co.  83  F.  > 
It  is  a  conclusive  presumption  that  there  is  the  apex 
of  a  vein  within  the  patented  ground. — Gr.  Central 
M.  Co.  v.  Mammoth  Co.  83  P.  668. 

It  is  conclusive  evidence  of  a  prior  location  as 
to  all  claims  having  surface  conflicts  not  excluded 
from  its  area. — Empire  Co.  v.  Bunker  Hill  Co.  11] 
F.  420.  And  of  a  valid  discovery. — Calhoun  Co.  v. 
Ajax  Co.  182  U.  8.  499. 

But  the  case  of  Uinta  Co.  v.  Creede  Co.  119  F. 
164,  makes  the  distinction  that  where  a  hostile  claim 
has  had  no  opportunity  to  contest  the  issue  of  the 
patent,  as  for  instance,  where  a  lode  has  been  pat- 
ented across  the  line  of  a  tunnel  before  it  was  cut  in 
the  tunnel,  the  patent  is  not  conclusive  evidence  of 
a  valid  discovery  as  against  the  asserted  rights  of 
such  tunnel. 

The  facts  were  these:  The  lode  was  located 
before  the  tunnel  site  was  located.  After  both  lo- 
cations the  lode  was  patented.  The  tunnel  owner 
on  reaching  the  claim,  which  crossed  the  line  of  the 
tunnel,  had  no  right  to  cross  if  in  fact  a  valid  loca- 
tion of  the  lode  claim  had  been  made  before  the 
tunnel  was  started. 

The  tunnel  owners  claimed  that  there  was  in 
fact  no  valid  discovery  on  the  lode  claim  before  the 
location  of  the  tunnel  site.  The  lode  owners  con- 


UNITED  STATKS  PATENT,  ur. 

tended  that  the  patent  was  conclusive  evidence  that 
it  had  a  legal  discovery  at  .the  time  claimed  in  its 
location  certificate;  but  the  appellate  court  sustained 
the  reasoning  of  the  circuit  court  of  appeals  and 
held  in  favor  of  the  tunnel  site.— 196  U.  S.  331.  Fol- 
lowed on  like  facts  in  Uinta  Co.  v.  Aja.r  c<>.  r,i  }\ 
563. 

Conclusiveness  As  to  Mineral  Character  of  Land. 
See  p.   207. 

Patent— When  Void. 

If  not  valid  on  its  face  or  if  issued  in  spite  of  a 
law  which  forbade  its  issuance,  it  is  an  inoperative 
paper,  and  may  be  passed  upon  and  excluded  in  a 
suit  at  law, — because  it  is  void. — Kahn  v.  Old  Tele- 
graph Co.  2  Ut.  Iti*;  11  M.  R.  646;  Si.  Louis  Co.  v. 
Kemp.  104  U.  8.  636;  11  M.  R.  673;  Oarrard  v.  8.  P. 
Mines.  82  F.  578.  A  patent  for  a  lode  in  excess  of 
legal  width  has  been  held  void. — Lakin  v.  Dolly.  S3 
F.  ,)  >n  v.  Roberts,  54  F.  461:  but  otherwise 

as  to  patent  perfecting  locations  made  prior  to  the 
Act  of  1872. — Carson  City  Co.  v.  North  Star  Co.  supra. 

Patent— When  Voidable. 

But  if  only  irregular,  or  obtained  by  fraud,  or 
issued  to  the  wrong  party,  it  is  only  voidable,  and 
must,  until  set  aside,  or  a  trust  declared  thereon, 
be  taken  as  conclusive  both  at  law  and  in  equity. — 
Silver  Bow  Co.  v.  Clarke.  5  P.  510;  Rose  v.  Richmond 
Co.  n  Nev.  26. 

A  patent  is  not  void  as  to  the  excess  from  the 
fact  that  it  conveys  more  than  300'  feet  from  the 
center  of  the  lode. — Peabody  Co.  v  Gold  Hill  Co. 
07  /•'.  W7;  ni  F.  818. 

The  Land  Office  Can  Not  Insert  Conditions  or  ex- 
ceptions not  authorized  by  law,  in  a  patent. — Deffe- 
back  r.  //  ncke,  115  U.  S.  392;  Clary  v.  Hazlett,  7 
/'.  701;  Talbott  v.  King,  9  P.  4.14:  Silver  Bow  Co.  v. 
Clark'  70;  Davis  v.  Weibbold,  139  D.  S.  521. 


146  UNITED  STATES  PATENT. 

All  Presumptions  in  Its  Favor. 

When  a  patent  is  judicially  attacked  all  pre- 
sumptions are  indulged  to  its  favor.  It  will  be  as- 
sumed that  everything  was  done  which  the  law  re- 
quired to  be  done,  and  mere  irregularities,  though 
proved,  will  not  impeach  it. — U.  8.  v.  Marshall  Co. 
129  V.  S.  579;  16  M.  R.  205;  U.  8.  v.  Iron-Silver  Co. 
128  U.  8.  673;  Galbraith  v.  Shasta  Co.  76  P.  901. 

Placer  Patented  As  Lode  Claim. 

It  is  no  fraud  upon  the  Government  that  placer 
ground  has  been  patented  as  a  lode  claim  at  a  greater 
price  per  acre. — Peabody  Co.  v.  Gold  Hill  Co.  Ill  F. 

818. 

Suits  by  IT.  S.  to  Annul  Patent. 

When  obtained  by  fraud  against  the  United 
States,  as  where  mineral  land  has  been  entered  as 
agricultural,  or  upon  false  representations,  the  false 
representations  being  material,  the  application  to  set 
aside  being  made  without  too  great  delay  and  inno- 
cent buyers  being  to  a  certain  extent  protected — it 
may  be  set  aside  at  the  suit  of  the  United  States. 
This  requires  action  by  the  Attorney  General,  who 
directs  the  U.  S.  District  Attorney  to  bring  suit  in 
the  U.  S.  Circuit  Court.— Boggs  v.  Merced  Co.  J ', 
Gal.  279;  10  M.  R.  334;  Mullan  v.  U.  8.  118  U.  S.  271; 
U.  8.  v.  Iron-Silver  Co.  128  U.  S. 

Such  action  lies  where  the  patent  has  issued 
through  fraud,  mistake  or  erroneous  views  of  law  by 
the  Land  Department.— U.  8.  v.  Winona  Co.  67  F.  948. 
See  STATUTE  OF  LIMITATIO^ 

A  patent  will  not  be  set  aside  for  fraud  where 
the  property  has  passed  into  the  hands  of  a  bona  fide 
purchaser  without  notice. — Colo.  C.  &  I.  Co.  v.  U.  S. 
/.?.,'  U.  S.  307;  U.  S.  v.  Clark,  138  F.  :>!>',. 

Degree  of  Proof. 

In  suits  to  set  aside  a  patent  or  to  declare  a 
trust  in  favor  of  another  claimant,  the  proof  to  over- 
come the  presumptions  in  favor  of  the  patent  must 


UNITED  STATES  PATENT.  147 

be  clear  and  convincing. — U.  8.  v.  Kin</.  SS  /  /88; 
ThaUmann  v.  Thomas,  111  F.  ,277. 

It  will  not  be  reformed  in   equity  to  correct  a 
misdescription  where  the  monuments  can  not  be  reset 
with  certainty. — ThaUmann  v.   Thomas,  102  F. 
Affirmed  111  F.  277. 

Where  Issued  to  the  Wrong  Party  in  fraud  of  the 
right  of  the  real  owner,  the  suit  is  not  to  set  the 
patent  aside,  but  to  have  it  declared  that  the  party 
to  whom  it  issued  holds  in  trust,  and  to  compel  by 
decree  of  court  a  conveyance  from  him  to  the  party 
to  whom  it  should  have  issued. 

The  Federal  Courts  have  jurisdiction  of  such 
cases  independent  of  the  citizenship  of  the  parties. 
— Gates  v.  Producers  Co.  96  I 

Such  a  suit  cannot  be  maintained  on  mere  pri- 
ority of  title,  for  here  an  adverse  claim  should  have 
been  filed,  but  only  on  the  allegation  of  breach  of 
trust  or  in  like  instances. 

A  party  who  had  at  the  time  of  its  issue  no 
claim  of  title  to  the  land  patented  has  no  standing  to 
attack  it  for  fraud  practiced  on  the  land  department. 
—Peabody  Co.  v.  Gold  Hill  Co.  Ill  F.  811. 

Irrevocable — No  Second  Patent. 

After  a  patent  has  issued,  the  land  office  has  no 
power  to  cancel  or  recall  the  same  nor  to  issue  a 
second  patent  for  the  same  land  to  another  party. — 
Moore  v.  Robbins,  96  U.  S.  530. 

Wrong  Description. 

Where,  by  reason  of  erroneous  survey  or  other 
mistake,  the  patent  describes  other  land  than  that 
actually  applied  for,  it  may  be  corrected  upon  sur- 
render of  the  patent.— 22  L.  D.  101;  28  Id.  307;  29 
Id.  160. 

Title  by  Receiver's  Receipt. 

After  valid  entry  its  holder  has  a  vested  estate 
and  the  land  has  ceased  to  be  public  domain. — Rader 
v.  Allen,  41  P.  154. 


148  INTERFERENCE  OF  CLAIMS. 

Canceling  Receiver's  Receipt. 

But  the.  land  office  has  the  power  to  cancel  the 
receiver's  receipt  and  all  preliminary  proceedings, 
and  frequently  exercises  this  power  in  case  of  irregu- 
larities in  the  application. 

Land  Office  Adjudications. 

When  the  question  of  priority  between  patentees 
has  been  contested  and  adjudicated  in  the  land  office 
their  findings  within  their  jurisdiction  on  matters 
of  fact  or  mixed  law  and  fact,  in  the  absence  of 
fraud  or  imposition,  are  accepted  by  the  court 
conclusive. — Jeffords  v.  Hine,  11  P.  .l~>l :  1~>  M.  /.'. 
575;  Aurora  Hill  Co.  v.  85  Co.  34  F.  515;  15  M.  R.  581. 

Squatters'  Improvements. 

A  prior  occupant  of  public  land  who  takes  no 
steps  to  perfect  his  title  and  allows  it  to  go  to  patent 
to  another  has  no  claim  either  to  title  or  to  be  re- 
imbursed for  his  improvements. — Helstrom  v.  Rodes, 
S3  P.  ISO. 


INTERFERENCE    OF    CLAIMS. 


Veins  Uniting  on  Strike  or  Dip. 

R.   S.  Sec.  2336. — Where  two  or  more  veins  ini. 
or  cross  each  other,  priority  of  title  shall  govern,  and  such 
prior   location  shall   be  entitled   to  all   ore   or   mineral   con- 
tained within  the  space  of  intersection  :  but  the  subsequent 
location  shall   have  the  right  of  way   through  the  space  of 
intersection  for  the  purposes  of  the  convenient  workii.. 
the  mine.     And  where  two  or  more  veins  unite,   the  olaest 
or   prior    location   shall    take   the   vein    below    the   point   of 
union,    including    all    the    space    of    intersection. — Sec.     //. 

Mil ii   in.   /\?J. 

Mining  Acts  Based  on  Erroneous  Presumption  As 

to  Facts — Irregularity  of  Veins. 

The  cause  of  the  principal  question  under  this 
heading  is  the  fact  that  the  U.  S.  Mining  Acts  con- 
cerning lode  claims  are  based  on  the  supposition  or 
theory  that  a  lode  is  a  straight  vein  whose  course 


INTERFERENCE  OF  CLAIMS.  149 

can  be  readily  ascertained  and  indicated  by  a  straight 
line  or  a  series  of  straight  lines;  and  that  occasion- 
ally such  a  vein  is  crossed  by  another  in  a  similar 
straight  line,  merely  requiring  the  right  of  way  to 
give  each  claim  its  proper  lode.  But  in  fact  a  lode  is 
rarely  a  straight  line;  it  is  seldom  to  be  traced  with- 
out confusion  for  more  than  a  few  hundred  feet;  and 
in  its  course  other  veins  are  absorbed  into  it;  and 
offshoots  (not  only  spurs,  but  perhaps  better  devel- 
oped veins  than  itself)  run  from  it;  and  in  its  ex- 
tension downward,  it  invariably  dips  laterally;  and 
often  shows  a  fork  of  which  both  parts  approach 
the  surface;  and  it  will  divide,  and  may  or  may  not 
unite  at  another  point;  and  it  will  abut  suddenly 
upon  country  rock  and  so  be  thrown  far  to  one  side; 
and  instead  of  showing  distinct  lines,  mineral  veins 
are  as  irregular,  as  disproportioned  in  length  and 
width,  as  much  intermingled,  though  on  a  larger 
scale,  as  are  the  veins  in  a  block  of  marble. 

The  theory  that  each  survey  covers  a  distinct 
vein,  or  that  a  survey  covers  any  vein  at  all,  or  that 
its  center  line  follows  the  apex  of  the  vein,  or  that  its 
discovery  shaft  is  sunk  on  a  vein,  is  all  bare  assump- 
tion— these  points  depend  upon  developments,  and  not 
on  diagrams  or  surface  surveys. 

Presumption  That  Survey  Covers  the  Vein. 

But  upon  proof  of  discovery  and  location  it  is  in- 
ferred that  the  survey  lines  include  the  apex  of  the 
vein,  and  this  presumption  throws  the  burden  of 
proof  on  the  party  alleging  a  departure. — Armstrong 
v.  Lower,  6  Colo.  585;  15  M.  R.  458;  Wakeman  v.  Nor- 
ton, 24  Colo.  1'.' .'. 

The  interference  of  veins  by  uniting  on  the 
strike,  or,  more  commonly,  the  interference  of  claims 
by  the  holder  of  one  part  of  a  blind  lode  developing 
into  another  part  of  the  same  lode  located  by  an- 
other as  a  separate  lode — was  of  vital  importance  be- 
fore the  Act  of  1872,  because  surface  lines  were  not 
marked  and  each  claimant  was  supposed  to  follow 
his  vein  wherever  it  ran.  But  under  present  law  the 
surface  lines  and  the  apex  within  them  in  general 


150  CROSS  LODES. 

define  the  rights  of  all  parties,  with  the  obvious  ex- 
ception of 

First — Cross  lodes. 

Second — Veins  uniting  on  the  dip — which  points 
are  considered  under  the  next  two  headings. 

Overlapping  Surveys. 

The  holder  of  the  oldest  patent,  i.  e.,  in  general 
the  patent  which  has  the  senior  entry,  holds  all  veins 
which  apex  within  the  area  of  conflict. — Montana  Co. 
v.  Boston  Co.  51  P.  159.  The  same  rule  applies  in 
favor  of  the  older  title  where  both  are  possessory. 
Where  one  is  patented  and  the  other  is  possessory  the 
patented  claim  holds  because  (1)  it  may  always  have 
been  the  earlier  title,  and  (2)  if  not,  it  has  beconi. 
so  by  the  failure  of  the  overlapper  to  adverse. — Em- 
pire Co.  v.  Bunker  Hill  Co.  J14  F.  i-'" 

Where  there  are  overlapping  surveys,  the  side 
lines  of  the  senior  claim  do  not  become  the  end  lines 
of  the  junior  claim  when  the  location  extends  be- 
yond the  intersecting  claims. — Cheesman  v.  Hurt.  //; 
M.  R.  263.  Lines  may  be  lawfully  extended  over,  and 
stakes  set  upon  prior  locations  so  as  to  secure  paral- 
lel end  lines,  or  for  any  other  legitimate  purpose. — 
Del  Monte  Case,  111  U.  *Sf.  ,55;  McElligott  r.  A'/m//,. 
•90  P.  823. 

A  subsequent  location  is  entitled  to  the  overlap 
on  any  part  of  a  prior  location  which  is  not  legally 
held  by  such  prior  location. — McPherson  v.  Jill  in*. 
95  N.  W.  428. 


CROSS    LODES. 


Priority  of  Title  Controls. 

R.  S.  Sec.  2336. — Whciv  two  «>r  nn»n>  veins  intersiM  i 
or  cross  each  other,  priority  of  title  shall  govern,  and  sin -li 
prior  location  shall  be  entitled  to  all  ore  or  mineral  on 
tained  within  the  space  of  intersection:  but  the  subsequent 
location  shall  have  the  right  of  way  through  the  space  <•! 
intersection  for  the  purposes  of  the  convenient  working  of 
the  mine.  *  *  *  — Sec.  1',,  A.  C.  May  10,  / 


CROSS  LODES.  151 

The  above  section  being  a  single  section  of  an 
fin  ire  Act.  must,  it'  ambiguous,  be  compared  with  all 
other  sections  of  the  same  Act  which  have  any  bear- 
ing on  the  subject  matter.  The  only  other  pertinent 
portion  of  the  Act  is  that  part  of  section  2322,  which 
says : 

"Tli«'  locators  ui"  all  mining  locations  *  *  *  where 
no  adverse  claim  exists  on  the  tenth  day  of  May,  eighteen 
hundred  and  se\ . -nty  i  \\ o.  *  *  *  shall  have  the  exclu- 
sive rijjht  of  possession  ;nid  enjoyment  of  all  the  surface 
included  within  the  lines  of  their  location,  and  of  all  veins, 
lodes,  and  ledir*  s  throughout  their  entire  depth,  the  top  or 
of  which  li.s  inside  of  such  surface-lines  extended 
downward  vertically."-  *  *  *  * 

In  the  case  of  lodes  located  under  or  before  the 
Act  of  1866,  a  right  of  way  is  clearly  granted  under 
Th<-  ons  about  quoted.  Those  old  claims  held 

l)ii t  a  single  vein,  and  the  owners  of  any  other  vein 
hud  a  ri.uht  to  work  up  to  the  very  wall  of  the  crossed 
vein.  Such  being  the  case,  the  Act  of  May  10,  1872, 
merely  added  the  easement  of  the  right  to  work 
through  the  crossed  vein;  but  as  to  lodes  located  un- 
der the  Act  of  May  10,  1872,  the  matter  is  complicated 
by  the  fact  that  all  claims  under  that  Act  have  a 
width  miming  from  50  to  600  feet,  and  that  all  veins 
within  such  distance  have  been  granted  to  the  owner 
of  the  claim  as  fully  as  the  vein  upon  which  his  dis- 
covery is  sunk. 

Title  to  the  Space  of  Intersection. 

The  question  has  been  often  stated  in  this  form: 
— "Does  the  space  of  intersection,  mentioned  in  sec- 
tion 2336,  mean  the  space  of  the  actual  crossing  of 
the  veins — or  the  space  through  which  the  cross  lode 
runs  from  side  line  to  side  line?"  But  this  question 
does  not  reach  the  merits  and  is  based  upon  a  mis- 
understanding or  a  want  of  due  attention  to  the 
words  of  the  Act. 

If  the  cross  lode  have  the  right  of  crossing  at 
the  point  of  actual  vein  crossing  only,  how  is  it  to 
be  worked  across  the  ground  between  the  side  line 
and  the  space  of  actual  vein  intersection?  Of  what 
avail  would  such  a  right  of  crossing  be  to  those  own- 


152  CROSS  LODES. 

ing  no  easement  or  estate  in  such  intervening  ground? 
It  is  clear  then  that  to  make  the  Act  have  a  just  and 
sensible  meaning,  the  "space  of  intersection"  refers 
to  the  whole  distance  from  side  line  to  side  line,  and 
this  being  conceded,  the  real  question  remains:  "To 
whom  does  the  cross  vein  belong,  throughout  the 
space  of  intersection  from  side  line  to  side  line?" 

Sec.  2322  had  already  granted  it  to  the  prior 
owner  of  the  crossed  lode.  It  was  within  the  power 
of  Congress,  by  a  subsequent  clause,  to  have  made 
the  crossing  lode  an  exception  carved  out  of  the 
general  grant  of  the  words  of  the  previous  section; 
but  has  it  attempted  so  to  do?  The  only  grant  of 
section  2336  is,  the  right  of  way,  which  of  itself  im- 
plies that  it  was  not  a  grant  of  the  vein,  but  of  an 
easement  to  which  the  estate  of  the  prior  location  is 
made  servient. 

To  give  any  part  of  the  space  of  intersection  to 
the  holder  of  the  later  location  would  be  to  take  from 
the  older  location  something  already  granted  to  it. 
To  create  an  exception  out  of  his  grant  as  he  orig- 
inally takes  it  under  the  Act  of  Congress  would  re- 
quire in  the  wording  of  the  Act  expressions  as  strong 
as  are  required  to  create  an  exception  in  a  deed.  An 
exception  is  equivalent  to  the  reconveyance  of  land 
already  conveyed.  A  right  of  way  is  not  an  exception, 
but  a  reservation  which  may  be  inferred  from  any 
wording  indicating  an  intention  to  create  an  ease- 
ment. It  takes  nothing  from  the  body  of  the  grant 
of  the  first  locator;  but  compels  the  first  locator  to 
use  or  hold  his  grant  or  claim  subject  to  a  right  or 
privilege  to  the  junior  or  overlapping  claimant,  of 
reaching  the  other  end  of  his  claim  by  passage 
through  the  senior  location. 

It  seems  to  the  author,  from  the  above  reasoning, 
that  a  cross  lode  takes  no  estate  in  the  claim  it 
crosses  and  has  no  rights  as  against  the  crossed  claim 
except  the  mere  right  to  drift  through,  leaving  all 
ore  as  the  property  of  the  crossed  claim. 


CROSS  LODES. 

Decisions  As  to  Rights  of  Cross  Lodes. 

All  recent  cases  are  in  agreement  with  these 
views. — Pardee  v.  Murnni.  .'..'/;  15  M.  R.  515; 

Watervale  Co.  v.  Leach,  33  P.  418;  Wilhelm  v.  Syl- 
vester, 35  P.  997;  Calhoun  Co.  v.  Ajax  Co.  59  P. 
607;  the  latter  overrules  the  case  of  Branagan  v. 
Dulaney,  8  Colo.  408,  which  had  been  so  often  cited 
against  the  above  construction.  The  Ajax  case  was 
affirmed  in  /S2  U.  8.  ',' 

Cross  Surveys — Veins  Merging. 

The  fact  that  the  surveys  cross  does  not  neces- 
sarily raise  the  question  of  cross  lodes.  There  must 
be  an  actual  crossing  of  the  veins,  and  if  one  vein 
unite  with  the  other  on  the  strike  the  vein  beyond 
the  point  of  union  belongs  to  the  holder  of  the  older 
patent.— Lee  v.  Stalil,  13  Colo.  174;  16  M.  R.  152; 
Book  v.  Justice  Co.  58  F.  106;  17  M.  R.  617. 

There  must  be  two  separate  mineral  veins  to 
make  a  crossing  within  the  law. — Morgenson  v.  Mid- 
dlesex Co.  11  Cofo.  176;  Omar  v.  Soper,  Id.  389. 

The  Burden  of  Proof  is  on  the  party  alleging  a 
crossing. — Lee  v.  Ktalil.  supra. 

No  Right  to  Enter  to  Prove  Crossing. 

The  actual  crossing  of  lodes  is  more  often  a  mat- 
ter of  conjecture  than  proof,  and  upon  the  conjec- 
ture of  a  crossing  a  party  has  no  right  to  enter 
upon  the  crossed  claim  to  prospect  for  his  lode  or 
prove  the  crossing.  The  latter  clause  of  §  2322  con- 
tains a  proviso  against  the  use  of  the  surface  in  any 
such  case.  The  right  of  crossing  can  be  exercised 
only  by  following  the  vein  from  some  point  outside 
of  the  crossed  claim  to  a  point  where  it  enters  the 
crossed  claim,  and  thence  by  drift  along  the  same. — 
Atkins  v.  Hendree,  1  Ida.  107;  2  M.  R.  328. 

Settlements  Between  Cross  Lode  Owners  will  be 
upheld,  although  they  were  at  the  time  ignorant  of 
their  strict  legal  rights. — Coffee  v.  Emigh,  15  Colo. 
184. 


154  VEINS  UNITING  ON  DIP. 

As  Between  Grantor  and  Grantee  the  grantor  can 
not  claim  any  implied  right  to  cross  the  granted 
ground  on  pretense  of  following  a  cross  vein.  He 
has  conveyed  all  veins  apexing  within  the  granted 
area. — Stinchfield  v.  Gillis,  JtO  P.  98. 


VEINS   UNITING   ON  THE   DIP. 


Prior  Location  Takes  Title. 

K.  S.  Sec.  2336. —     *     *     *     Wln-iv  two  or  more  veins 

imit<>,  the  oldest  or  prior  location  shall  t:iki-  tin-  vHn  ln-lnw 
the  point  of  union,  including  all  tin*  spare  of  intersection. — 
,svr.  uf  May  10,  1872. 

The  above  paragraph  follows  that  part  of  §  2336, 
which  says  that  "priority  of  title  shall  govern"  in 
case  of  interference  of  veins  on  their  strike. 

It  often  happens  that  on  developing  two  veins  by 
shafts  from  surface  they  are  found  to  unite  as  they 
go  down.  A  vertical  section  of  the  two  lodes  in  such 
case  gives  the  form  of  the  letter  Y.  Where  both 
claims  are  possessory,  the  older  title,  i.  e.,  the  older 
discovery  properly  followed  by  location  and  record 
takes  the  vein  below  the  point  of  union.  If  both 
are  patented,  or  if  only  one  is  patented,  the  obvious 
question  is:  Does  the  first  patent  hold  on  account 
of  failure  of  the  first  discovery  to  adverse?  or  does 
the  first  discovery  hold? 

In  the  case  of  the  Champion  Co.  v.  Cons.  Wyo- 
ming Co.  75  Gal.  78;  16  M.  R.  145,  the  two  lodes  in 
controversy  so  came  together  at  about  500  feet  in 
depth.  The  Wyoming  lode  was  patented  in  1874. 
The  Philip  lode  claimed  to  be  a  location  prior  in  date 
to  the  Wyoming,  but  was  not  able  to  prove  such  al- 
legation, and  therefore  had  no  state  of  facts  upon 
which  the  court  could  properly  decide  this  point  and 
interpret  the  statute.  Still,  they  intimated  that  the 
older  possessory  title  would  hold  without  regard  to 
patent.  In  the  case  of  Lee  v.  Stahl,  13  Colo.  174;  16 
M.  R.  152,  which  involved  the  rights  of  cross  lodes 


YKIXS  UNITING  ON  DIP.  155 

only,  the  court  in  argument  leaned  to  the  same  con- 
struction. 

But  the  point  has  been  since  expressly  decided 
and  always  to  the  same  result,  to  wit:  in  favor  of  the 
older  location. — Little  Josephine  Co.  v.  Fullerton,  58 
F.  521;  17  M.  R.  66'f;  Con*.  Wijominf/  Co.  v.  Cham- 
pion Co.  63  F.  540. 

Where  two  veins  apexing  in  two  patents  were 
alleged  to  unite  after  they  had  come  by  the  dip  un- 
der a  third  patent  it  was  held  that  the  third  patent 
had  no  title  to  the  vein  and  that  the  controversy  must 
arise  between  the  patents  which  covered  the  apexes. — 
Roxanna  Co.  v.  Cone,  100  /  /'> 

Relation — Presumption. 

Even  if  suspected,  such  union  would  rarely  be 
provable  in  time  to  support  an  adverse  claim,  and 
even  if  known  an  adverse  claim  could  not  be  brought 
because  an  adverse  is  allowed  only  where  there  is  a 
surface  conflict. — 6  L.  D.  320.  The  doctrine  of  rela- 
tion back  to  discovery,  therefore,  applies,  but  the 
date  of  discovery  and  of  the  respective  acts  of  loca- 
tion are  open  to  parol  proof.  If  the  union  becomes 
known  or  comes  in  contest,  as  it  generally  does  after 
both  lodes  are  patented,  there  exists  a  presumption 
in  favor  of  each  that  it  had  a  valid  discovery  and  lo- 
cation at  the  date  of  entry,  but  there  is  no  conclusive 
presumption  that  the  date  of  discovery  or  of  location 
claimed  by  the  recorded  location  certificate  upon 
which  the  patent  issued  is  the  true  date. — 8t.  Louis 
Co.  v.  Kemp,  104  U.  8.  636;  11  M.  R.  673;  2  Lind. 
§  730,  783;  Last  Chance  Co.  v.  Tyler  Co.  61  F.  557. 
Conclusive  presumptions  binding  on  all  parties  are 
fixed  only  where  the  party  to  be  bound  has  had  op- 
portunity to  have  his  day  in  court. — Uinta  Co.  v. 
Creede  Co.  119  F.  164. 


156  SIDE  VEINS. 


SIDE  VEINS  WITHIN  LOCATION  LINES 
BEFORE  MAY  10,  1872. 


Congressional  Bounty  or  Confirmation. 

R.  S.  Sec.  2328. — Applications  for  patents  for  mining 
claims  under  former  laws  now  pending  may  be  prosecuted 
to  a  final  decision  in  the  General  Land  Office ;  but  in  such 
cases  where  adverse  rights  are  not  affected  thereby,  patents 
may  issue  in  pursuance  of  the  provisions  of  this  chapter ; 
nnd  all  patents  for  mining-claims  upon  veins  or  lodes  here- 
tofore issued  shall  convey  all  the  rights  and  privileges  con- 
ferred by  this  chapter  where  no  adverse  rights  existed  on 
the  tenth  day  of  May,  eighteen  hundred  and  seventy-two. — 
x<  r.  9.  May  10,  1872. 

Limited  to  Single  Vein. 

Under  the  original  Congressional  Act  of  1866, 
no  vein  except  the  first  claimed  was  covered  by  the 
location  or  conveyed  by  the  patent. 

A  lode  claim,  therefore,  located  before  May  10, 
1872,  originally  covered  but  one  vein,  and  a  patent  is- 
sued before  that  date  covered  but  one  vein. — Blake 
i).  Butte  Co.  2  Ut.  54;  9  M.  R.  503;  Eclipse  Co.  v. 
Spring,  59  Gal.  304. 

Side  Veins  Donated  to  Old  Claims  Since  1872. 

By  the  A.  C.  of  1872,  which  gave  to  all  new 
locations  and  future  patents  the  benefit  of  every- 
thing between  their  side  lines,  it  was  added  that  all 
old  locations  and  all  patents  under  the  old  Act  should 
have  the  same  benefit,  always  saving  any  rights 
which  had  intervened  before  the  passage  of  the  Act 
of  1872.— R.  8.  §  2328. 

The  result  of  this  Act  is,  that  a  location  properly 
made  before  May  10,  1872,  or  a  patent  issued  before 
that  date,  covers  all  side  and  other  interfering  veins 
practically  to  the  same  extent,  and  as  fully  as  loca- 
tions and  patents  under  the  present  law;  always  sav- 
ing the  exception  in  the  section  last  above  cited. — 
Pardee  v.  Murray,  4  Mont.  234;  15  M.  R.  515;  Walrath 
v.  Champion  Co.  63  F.  552. 


SIDE  VEINS.  157 

SIDE  VEINS   WITHIN  LOCATION  LINES 
SINCE  MAY  10,  1872. 


All  Veins  Apexing  Within  the  Lines. 

K.   E  1'hc-  locators  of  all  mining  locations 

tir  which   shall    h«>n>at'l«T   !>«>   made.      *      * 

\vluTf  MM  adverse  claim  cxi^i^  *  *  *  shall  have  the  ex- 
clusive ri^lit  .»f  possession  :uul  enjoyment  of  all  the  surface 
inrlmlod  within  th«>  lin.s  of  ihoir  locations.  anil  of  all  veins, 
l.nlrs.  an-l  'Mii-hout  their  entire  depth,  the  top  or 

apex    of    which    lies    Insld  'a    surface-lines    extended 

<1. .\\n\v.-inl  vertir.-'lly.      *      *      *     — Sec.  3.  May  10,  1872. 

Surface  Lines  and  Apex  Define  the  Claim. 

Under  the  law,  as  it  has  existed  since  May  10, 
1872,  it  is  <  lear  that  all  veins  whose  tops  or  apices 
are  within  the  lines  of  the  claim  go  with  the  lode 
which  gives  the  name  to  the  claim;  and  the  surface 
lines,  rather  than  identity  of  the  veins,  are  made 
to  control  the  extent  of  the  claim,  and  to  fix  the 
boundaries  between  adverse  parties. — Book  v.  Jus- 
-.  11  M.  R.  617:  Doe  v.  Waterloo 
Co.  54  F.  935. 

The  possible  exceptions  to  this  general  assertion 
are: 

1.  In  regard  to  what  are  commonly  called  cross 
lodes;  p. 

Where  the  outcrops  of  two  apparent  veins 
appear  on  two  separate  lines  at  the  surface,  but  in 
i heir  downward  course  such  veins  dip  into  each  other, 
unite  and  form  a  single  vein;  p.  !'>',. 

3.  Instances  where  a  location  on  the  dip  may 
have  cut^  oft*  tne  right  of  a  later  appropriator  on  the 
apex  to  follow  beyond  his  side  lines  extended  verti- 
cally downward;  p.  175. 

\.  Locations  and  patents  before  May  10,  1872, 
where  adverse  rights  had  intervened  so  as  to  prevent 
them  from  taking  the  benefit  of  the  grant  of  side 
veins  under  the  Act  of  that  date;  p.  156. 

One  Set  of  End  Lines  for  Side  Veins. 
See  p.  178. 


158  DEPARTURE  FROM  SIDE  LINES. 


DEPARTURE    OF   LODE   FROM    SIDE    LINES. 


Statement  of  the  Point. 

That  the  vein,  and  not  the  surface,  is  the  mate- 
rial grant  of  a  patent  to  a  mining  claim  has  never 
been  disputed;  nor  can  it  be  denied  that  it  is  the 
intention  both  of  the  purchaser  in  buying,  and  the 
Government  in  selling,  to  deal  with  the  mineral  de- 
posit, the  surface  being,  in  itself,  comparatively 
worthless  to  either.  And  if  the  case  lay  between 
the  Government  and  the  purchaser  alone,  this  mani- 
fest intention  might  prevent  any  attempt  to  confine 
the  party  to  an  erroneous  survey,  giving  him  only 
valueless  surface,  notwithstanding  the  material  fact 
that  it  is  the  patentee,  and  not  the  United  States, 
who  has  chosen  the  lines  which  produce  the  mischief. 
— Patterson  v.  Hitchcock,  5  M.  R.  542;  3  Colo.  533. 

But  it  is  the  rights  of  innocent  third  parties, 
holding  claims  beyond  the  located  or  patented  side 
lines,  which  has  rendered  this  question  so  important, 
and  which  must  result  in  maintaining  the  consistent 
construction  already  given  to  the  Act  of  Congress, 
confining  every  claim  to  its  own  lines;  though  even 
if  it  were  a  matter  of  indifference,  this  holding  re- 
quires no  forced  construction  of  the  Acts  under  ordi- 
nary rules  of  interpretation,  and  had  been  the  con- 
stant ruling  of  the  Appellate  and  Circuit  Courts  be- 
fore its  confirmation  by  the  Federal  Supreme  Court. 

Uniformity  of  Rulings  on  the  Point. 

This  question,  however,  with  singular  t  unanim- 
ity has  been  set  at  rest  by  the  decisions  of  many 
courts.  It  is  now  beyond  controversy  that  the  mo- 
ment the  apex  of  a  vein  leaves  either  side  line  of  its 
survey  the  locator  has  no  further  claim  thereto,  on 
the  strike,  beyond  such  point  of  departure. — Wolfley 
v.  Lebanon  Co.  4  Colo.  112;  13  M.  R.  282;  Johnson  v. 
Buell,  4  Colo.  557;  9  M.  R.  502;  The  Flagstaff  case, 
9  M.  R.  607;  The  Golden  Fleece  case,  12  Nev.  312;  1 
M.  R.  120. 


DEPARTURE  FROM  SIDE  LINES.  159 

These  decisions  apply  equally  to  patented  and  un- 
l>a tented  claims,  and  have  been  universally  acceded 
to  as  the  only  construction  which  would  give  to  a 
mining  claim  the  same  certainty  of  title  which  be- 
longs to  other  classes  of  real  estate  which  are  free 
from  the  complications  of  dips  and  departures. 

Facts  of  the  Golden  Fleece  Case. 

The  case  from  Nevada  is  singularly  illustrative 
of  i he  injustice  which  would  result  from  a  contrary 
holding. 

The  Golden  Fleece  Lode  was  surveyed  and  staked 
in  1S74,  upon  a  vein  supposed  to  run  northwest 
and  southeast.  The  location  claiming  1,500  feet  ran 
due  northwest  and  southeast,  with  600  feet  width. 
Afterwards  developments  by  its  workings  and  on  the 
Leonard  Lode,  whose  discovery  was  about  800  feet 
to  the  southwest,  showed  that  the  vein  really  ran  at 
riidit  angles  to  its  originally  supposed  course.  The 
Leonard  Lode  having  applied  for  patent,  the  Golden 
Fleece  made  a  second  survey  at  right  angles  to  the 
first  which  of  course  embraced  all  the  workings  and 
•  Toppings  on  the  Leonard,  and  then  filed  its  adverse 
claim,  based  on  such  relocation.  But  it  was  held 
that  the  Golden  Fleece  must  be  confined  to  its  orig- 
inal location  and  to  that  part  of  the  vein  within  the 
lines  of  such  original  location. 

Same  Holding  on  Old  50-Foot  Patents. 

The  patent  in  the  Wolfley  case  was  issued  under 
the  Act  of  18C6,  so  that  the  decision  necessarily  ap- 
plies to  all  patents;  because  the  argument  in  favor 
of  following  the  vein,  under  the  Act  of  1866,  was 
much  stronger  than  in  the  case  of  patents  under 
the  later  Act. — Lamed  v.  Jenkins,  113  F.  634 . 

Not  Color  of  Title. 

In  a  later  suit,  upon  the  same  patent  construed 

in  the  Wolfley  case,  it  was  held  that  where  the  patent 

owner  had  followed  his  vein  outside  and  had  held  it 

adversely  for  five  years,  that  he  had  not  even  such 

color  of  title"   as  would  operate  to  allow  him  the 


160  DEPARTURE  FROM  SIDE  LINES. 

benefit  of  the  statute  of  limitations. — Lebanon  Co.  v. 
Rogers,  8  Colo.  34. 

Surface  Location  Beyond  Point  of  Vein  Departure. 

If  the  location  fail  to  cover  the  vein,  not  only 
is  the  vein  lost  after  it  leaves  the  side  lines,  but  that 
portion  of  the  location  which  extends  beyond  the 
point  where  it  loses  the  vein,  has  been  decided  to  be 
defeasible,  if  not  void,  having  no  discovery  vein 
upon  which  to  base  any  further  claim  to  either  sur- 
face or  other  veins  which  may  lie  within  its  lines. — 
Patterson  v.  Hitchcock,  3  Colo.  533;  5  M.  R.  542.  See 
Plat,  p.  21. 

The  reason  of  this  decision  is  the  wording  of 
the  Act  of  Congress  (§  2320)  restricting  a  lode 
claim  to  a  certain  number  of  feet  on  "each  side  of 
the  middle  of  the  vein" — so  that  if  the  vein  is  no 
longer  found  within  the  lines  of  the  claim  the  loca- 
tor has  no  basis  upon  which  to  hold  any  number 
of  feet,  beyond  the  point  of  departure.  Discarding 
this  language  of  the  statute,  the  case  of  Watervale 
Co.  v.  Leach,  33  P.  418;  17  M.  R.  568,  holds  that  a 
lode  location  need  pay  no  attention  to  the  strike  and 
the  only  consequence  of  failure  to  plant  it  on  the 
strike  is  to  lose  the  right  to  follow  on  the  dip. 

The  decisions  on  this  point  do  not  apply  to  pat- 
ented claims;  Argonaut  Co.  v.  Turner,  48  P.  685;  18 
M.  R.  556,  and  there  is  an  initial  presumption  or 
prima  fades  that  the  survey  covers  the  vein  until 
the  contrary  is  affirmatively  proved. — Armstrong  v. 
Lower,  15  M.  R.  631;  6  Colo.  393. 

The  reason  that  a  patented  claim  is  valid  to  its 
full  extent  for  what  it  does  cover  is  that  the  patent 
is  of  a  "piece  of  land,"  with  all  the  surface  its  lines 
include;  the  patent  is  supposed  to  have  been  based 
on  a  location  made  on  a  vein,  with  only  the  statutory 
width  on  either  side,  and  if  in  fact  it  was  otherwise, 
or  if  the  vein  departed  before  it  reached  the  end  line, 
it  is  too  late  after  patent  for  any  adverse  claimant  to 
set  up  any  such  variations  to  defeat  the  operation  ot 
its  grant  to  the  entire  surface  and  to  such  part  of 


VEIN  WIDER  THAN  PATENT.  161 

the  vein  as  it  does  cover. — Oleeson  v.  Martin  White 
Co.  9  M.  R.  429;  IS  Aev.  442. 


VEIN   WIDER    THAN   PATENT. 


In  an  early  case  between  the  Colorado  Central 
and  the  Equator  Lode  in  the  U.  S.  Court  at  Denver, 
each  claimed  under  a  50  foot  patent,  the  vein  being 
admittedly  100  feet  wide.  The  Court  held  that  the 
older  patent,  the  Equator,  could  hold  only  to  its  side 
line  and  could  not  claim  extralateral  rights  on  its 
dip  underneath  the  Colorado  Central  Patent.  In 
Hull  ion  Co.  v.  Eureka  Co.  11  P.  515  (Utah),  the  ma- 
of  the  Court  took  the  opposite  view. 

In  Empire  Co.,  v.  Bunker  Hill  Co.  114  F.  417, 
the  Court  held  that  where  there  were  two  patents, 
one  covering  the  hanging  and  the  other  the  foot 
wall,  the  prior  location  had  extralateral  rights  and 
took  the  whole  vein  except,  of  course,  the  segment 
within  the  vertical  lines  of  the  later  location.  The 
case  of  St.  Louis  Co.  v.  Montana  Co.  104  F.  Mf, 
which  it  cites,  is  to  the  same  effect.  These  precedents 
are  followed  in  an  able  opinion  by  VAN  DKTAHTB, 
C.  J.  of  the  Eighth  Circuit..  U.  8.  M.  Co.  v.  Lawson, 
1S4  F.  169.  Affirmed,  L.  v.  U.  8.  M.  Co.  28  8.  C.  R.  15. 

A  discovery  shaft  may  be  the  valid  basis  of  a 
location  although  it  fails,  being  up  to  the  edge  of 
appropriated  ground,  to  cover  the  whole  width  of  the 
lode.— Larkin  v.  Upton,  144  U.  8.  19;  11  P.  732. 


LODES,  VEINS  AND  LEDGES. 

Definition  of  the  Terms. 

The  word  "lode"  and  the  word  "vein"  are  used 
indiscriminately  in  the  Acts  of  Congress*  as  well  as 
in  the  popular  language,  to  signify  the  same  thing. 

•See  the  text  of  Sec.  2320,  p.  15;   Sec.  2322,  p.  157. 
6 


162  LODES,  VEINS  AND  LEDGES. 

In  Bainbridge  on  Mines,  the  text,  page  2,  defines 
them  in  the  same  sentence:  "A  mineral  lode  or  vein 
is  a  flattened  mass  of  metallic  or  earthy  matter,  dif- 
fering materially  from  the  rocks  or  strata  in  which 
it  occurs."  A  note  to  the  same  suggests  the  use  of 
the  word  "vein"  as  incorrect,  when  applied  to  such 
deposits  as  those  of  anthracite  coal.  But  the  note  is 
not  justified,  for  the  word  "vein"  is  universally  used 
to  include  coal,  and  other  flat,  non-metallic  deposits, 
while  the  word  "lode"  is  not  so  used.  This  is  the  prin- 
cipal distinction  in  the  use  of  the  words.  The  word 
"lode"  is  of  Cornish  origin  (Bullion  Co.  v.  Croesus  Co. 
2  Nev.  176);  "vein"  is  Latin.  In  the  Eureka  case,  9 
M.  R.  578,  4  Sawy.  802,  where  it  is  said,  every  known 
definition  was  presented  to  the  Court,  the  opinion 
does  not  intimate  any  difference  in  their  meaning, 
but  says:  "Those  Acts  give  no  definition  of  the 
term  'lode.'  They  use  it  always  in  connection  with 
the  term  'vein.' " 

The  word  "ledge"  came  into  use  in  California 
after  the  discovery  of  the  quartz  mines,  because  they 
were  generally  found  in  the  hills  above  the 
gulches,  and  were  often  identified  with  protruding 
outcrop.  The  word  "reef,"  not  used  in  the  Acts,  is 
the  popular  equivalent  for  lode  or  ledge  in  Australia 
and  South  Africa.  The  word  "range"  is  much  used 
in  the  lead  districts  of  the  Mississippi  valley. — Rais- 
beck  v.  Anthony,  41  N.  W.  72. 

Connection  With  Context  of  the  Statute. 

The  only  limitation  or  qualification  In  the  United 
States  Mining  Statutes  in  connection  with  the  words 
"veins  or  lodes"  or  "veins,  lodes  and  ledges,"  is  the 
expression  "of  quartz  or  other  rock  in  place." 

"In  Place." 

These  words  have  been  construed  material  in 
cases  where  the  vein  has  been  found  eroded  or  broken 
up.  In  Stevens  v.  Williams,  1  M.  R.  557,  where  both 
the  overlying  and  underlying  bodies  were  solid,  the 
deposit  was  held  to  be  a  lode  "in  place." 


LODES,  VKINS  AND  LEDGES.  163 

In  Ta&or  v.  Dexter,  9  M.  R.  614,  where  the  loca- 
tion was  on  ore  where  the  overlying  rock  had  been 
eroded,  the  ore  body  remaining  covered  only  with 
wash  or  gravel,  it  was  held  that  the  lode  was  not  in 
place.  A  like  ruling  was  made  in  Leadville  Co.  v. 
Fitzgerald,  4  M.  R.  380.  The  practical  point  in  these 
decisions  is  that  where  a  location  is  claimed  to  be 
upon  the  apex  of  a  lode,  it  must  be  upon  such  apex  at 
a  point  where  it  is  in  place  between  the  original  en- 
closing rocks  to  be  valid  as  such  an  apex  location 
as  will  give  it  a  right  to  the  dip. 

Rock  in  place  is  contradistinguished  from  the 
soil  or  debris.  But  the  lode  is  in  place,  though  loose, 
broken  or  disintegrated. — Jones  v.  Prospect  Co.  SI 
Pac.  642. 

Size  and  Richness  of  Deposit  Not  Material. 

In  North  Noonday  Co.  v.  Orient  Co.  9  M.  R.  537, 
BAWYIB,  J.,  says:  "A  vein  or  lode  authorized  to  be 
located  is  a  seam  or  fissure  in  the  earth's  crust  filled 
with  quartz  or  some  other  kind  of  rock  in  place, 
carrying  gold,  silver  or  other  valuable  mineral  de- 
posits named  in  the  statute.  It  may  be  very  thin 
and  it  may  be  many  feet  thick,  or  thin  in  places — 
almost,  or  quite  pinched  out,  in  miners'  phrase — and 
in  other  places  widening  out  into  extensive  bodies  of 
ore.  So,  also,  in  places,  it  may  be  quite,  or  nearly, 
barren,  and  at  other  places  immensely  rich.  It  is 
only  necessary  to  discover  a  genuine  mineral  vein 
or  lode,  whether  small  or  large,  rich  or  poor,  at  the 
point  of  discovery  within  the  lines  of  the  claim  lo- 
cated, to  entitle  the  miner  to  make  a  valid  location 
including  the  vein  or  lode."  Its  validity  as  a  thing 
that  may  be  located  does  not  depend  on  what  it  runs. 
— Shreve  v.  Copper  Bell  Co.  28  P.  315;  Stinch field 
v.  Gillis,  30  P.  839.  Neither  walls  nor  pay  ore  is 
essential,  but  it  must  show  rock  distinguishable  from 
the  country. — Burke  v.  McDonald  33  P.  49.  The 
fissure  must  be  defined. — Cons.  Wyoming  Co.  v.  Cham- 
pion Co.  63  F.  540.  On  the  facts  in  this  case  it  is 
too  late  to  call  one  vein  a  spur  and  the  other  a  main 
vein.— Carson  City  Co.  v.  North  Star  Co.  13  F.  601. 


164  LODES,  VEINS  AND  LEDGES. 

There  Must  be  More  Than  a  Trace  of  Mineral — 
U.  8.  v.  Rossi,  133  F.  380;  but  an  assay  of  one  or 
more  ounces  (of  silver)  will  suffice. — Stevens  v.  Gill, 
1  M.  R.  570. 

Whatever  a  Miner  Would  Follow  with  the  ex- 
pectation of  finding  ore,  or  similar  phrases,  have 
been  adopted  as  the  practical  test  of  what  is  to  be 
considered  a  lode  under  the  Act  of  Congress. — Eu- 
reka Co.  v.  Richmond  Co.  9  M.  R.  578;  4  Sawy.  302; 
Harrington  v.  Chambers,  1  Pac.  362.  Any  body  or 
belt  of  mineralized  rock  is  a  lode. — Book  v.  Justice 
Co.  58  F.  106;  Shoshone  Co.  v.  Rutter,  87  F.  801. 

Different  Degrees  of  Proof. 

In  Fitzgerald  v.  Clark,  42  Pac.  283,  the  distinc- 
tion is  made  between  the  proof  sufficient  upon  which 
to  base  a  location  and  the  proof  required  where  the 
continuity  of  the  vein  is  in  question,  holding  to 
greater  strictness  in  the  latter  case.  The  degree  of 
proof  required,  and  the  use  of  the  words  "consider- 
able distance"  or  "considerable  interval"  in  the  con- 
tinuity, in  the  instructions,  is  discussed  in  Butte  Co. 
v.  Societe,  58  Pac.  111. 

What  might  be  sufficient  proof  on  which  to 
maintain  a  mining  location,  may  not  be  sufficient  to 
maintain  an  assertion  of  extra  lateral  rights. — Or. 
Cen.  Co.  v.  Mammoth  Co.  83  P.  648. 

In  Land  Office  Controversies  the  value  of  the  min- 
eral deposit  is  a  matter  immaterial  to  the  govern- 
ment save  in  contests  between  mineral  and  non-min- 
eral claimants. — 21  L.  D.  440. 

Faults  and  pinches  do  not  affect  the  legal  contin- 
uity of  the  vein. — Cheesman  v.  8hreeve,  40  F.  793. 
The  mineral  beyond  the  fault  is  a  part  of  the  same 
lode  or  range. — Raisbeck  v.  Anthony,  41  N.  W.  7  .'. 

Show  of  Mineral  by  Seepage. 

While  the  richness  or  poverty  of  the  vein  or  of 
the  seam  or  stratum  of  rock  followed  as  a  vein,  in 


LODES,  VEINS  AND  LEDGES.  165 

determining  the  question  of  such  rock  being  vein 
ter,  is  not  of  controlling  importance,  yet,  on  prac- 
tical acquaintance  with  the  subject,  it  will  be  seen 
that  such  point  of  relative  value  cannot  be  wholly 
ignored. 

Where  the  opinions  say  that  it  may  be  rich  or 
poor,  they  refer  to  the  well  known  fact  that  true 
veins,  for  long  distances,  are  often  quite  barren. 
But  it  does  not  follow  that  every  seam  of  rock  which 
will  assay  is  necessarily  any  vein  at  all.  For  there 
do  exist  seams  which  carry  a  little  mineral  and  yet 
are  not  veins  within  the  geological  or  legal  definition. 
The  mineralization  in  such  cases,  in  some  of  them  at 
least,  is  caused  by  infiltration  of  ore  from  a  true 
vein  or  deposit  along  some  plane  of  cleavage  or 
along  the  plane  between  two  formations,  or  through 
mere  mechanical  cracks  in  the  rock,  and  all  their 
mineral  is  only  precipitated  or  crystallized  seepage 
from  the  lode  or  deposit  above.  Such  bastard  veins 
have  just  enough  resemblance  to  true  veins  to  be  used 
as  a  pretext  of  title  against  neighboring  locations  on 
the  legitimate  vein.  They  are  generally  lacking  in 
walls,  continuity  and  in  the  normal  uniformity  of 
a  true  vein,  and  yet  may  have  slips  which  are  prac- 
tically indistinguishable  from  walls,  and  have  some 
discolored  matter  and  particles  of  ore,  just  enough 
to  be  dangerously  similar  to  what  is  of  value  only  as 
it  is  unlike  such  things. — Golden  v.  Murphy,  75  P. 
625;  76  Id.  29. 

The  question  of  vein  or  no  vein  in  law,  is,  in 
such  cases,  a  fact  to  be  determined  by  the  jury  under 
the  instructions  of  the  court. — Iron-Silver  Co.  v. 
Mike  d  Starr  Co.  143  U.  8.  394;  Blue  Bird  Co.  v. 
Largey,  49  F.  289. 

Mineral  Bearing  Zone. 

A  broad  formation  impregnated  everywhere 
with  mineral,  but  traversed  by  true  fissures  within 
itself,  cannot  be  considered  as  the  lode;  the  fissures 
within  such  zone  are  the  lodes  and  the  zone  is  the 
country. — Mt.  Diablo  Co.  v.  Callison,  5  Sawy.  439; 


166  LODES,  VEINS  AND  LEDGES. 

9  M.  R.  616.  Ore  distributed  generally,  though  un- 
equally, throughout  the  entire  mass  of  limestone 
of  the  mountain  does  not  constitute  a  continuous 
lode  such  as  may  be  followed  beyond  the  lines  of 
its  location.— Hyman  v.  Wheeler,  29  F.  347;  15  M. 
R.  519.  A  belt  of  porphyry  containing  mineralized 
seams  is  a  lode. — Book  v.  Justice  Co.  58  F.  106; 
Shoshone  Co.  v.  Rutter,  87  F.  801.  When  a  larger 
deposit  is  separated  into  two  distinct  seams  with 
separate  walls,  each  seam  is  a  separate  lode. — Doe 
v.  Waterloo  Co.  54  F.  935;  Hayes  v.  Lavagnino,  53 
P.  1029. 

Where  the  mineralization  of  the  alleged  lode  is 
not  appreciably  greater  than  the  surrounding  rock 
it  does  not  constitute  a  vein.  The  absence  of  walls 
and  want  of  continuity  commented  on. — Grand  Cen- 
tral M.  Co.  v.  Mammoth  M.  Co.,  83  P.  648. 

Ore  in  Pockets,  Vugs  or  other  irregular  and  dis- 
connected occurrences  without  vein  matter  between 
does  not  make  a  lode. — Cheesman  v.  Shreeve,  40  F. 
787.  Nor  ore  bodies  formed  outside  the  fissure. — 
Tombstone  Co.  v.  Way  Up  Co.  1  Ariz.  426. 

Where  the  Continuity  of  the  Ore  Body  Is  Broken 
by  the  contact  becoming  barren  for  a  considerable 
distance,  the  legal  extent  of  the  vein  ceases. — Ste- 
vens v.  Williams,  1  M.  R.  557;  Leadville  Co.  v.  Fitz- 
gerald, 4  M.  R.  380.  A  vein  need  not  be  a  straight 
line  nor  uniform  in  dip,  thickness  or  richness  of  ore. 
The  enclosing  cleft  or  fissure  may  narrow  or  even 
close  for  a  few  feet  and  be  found  further  on.  Its 
continuity  may  be  proved  by  following  either  the 
ore  or  the  rock  which  carries  the  ore.  Slight  proof 
of  ore  is  sufficient  where  the  enclosing  boundaries  are 
distinct;  there  need  be  no  proof  of  such  boundaries 
if  the  ore  itself  can  be  followed.  But  if  the  vein  dis- 
appear so  far  or  so  completely  that  it  cannot  be  rec- 
ognized when  it  is  again  found  or  alleged  to  be  found, 
there  is  no  sufficient  proof  of  continuity. — Iron  Silver 
M.  Co.  v.  Cheesman,  116  U.  S.  530;  followed  substan- 


APEX.  167 

tially  in  Hyman  v.  Wheeler,  supra,  and  in  the  Ghees- 
man  case,  40  F.  787.  Where  the  lode  has  no  defi- 
nite walls  the  ore  bodies  are  the  guides  to  follow. — 
Bunker  Hill  Co.  v.  Empire  Co.  134  F.  268. 

All  Deposits  "in  Place"  Are  Lodes. 

The  uniform  ruling  has  been  that  all  forms  of 
metallic  mineral  or  mineral  gangue  in  place,  whether 
fissure  or  contact  veins,  or  impregnations,  or  other 
irregular  deposits,  should  be  construed  to  come 
within  the  expression  "veins  or  lodes"  used  in  the 
Act  of  Congress,  and  as  such  to  be  subject  to  location 
and  patent  under  the  Act. — Hayes  v.  Lavagnino,  53 
P.  1029.  There  has  been  in  fact  a  concession  that 
such  should  be  the  holding  rather  than  a  contention 
to  the  contrary.  The  substantial  and  contested  point 
has  been  whether  a  location  or  patent  on  certain 
forms  of  deposit  was  entitled  by  virtue  of  including 
the  apex  or  so-called  apex  of  the  vein  or  deposit,  to 
follow  the  vein  or  deposit  beyond  the  side  lines  un- 
derneath the  adjoining  ground  or  claims  of  other 
parties.  This  point  will  be  considered  under  the 
next  heading,  An  \ 

Evidence  of  what  has  been  followed  up  and 
located  on  in  the  same  mining  locality  is  admissible 
as  to  what  is  sufficient  lode  discovery. — Ambergris 
M.  Co.  v.  Day  (Ida.),  85  P.  109. 


APEX. 


The  Grant  of  the  Apex  Right. 

K.  S.  Sec.  2322. — The  locators  of  all  mining  loca- 
tions *  *  *  shall  h:m>  the  exclusive  right  of  possession 
and  enjoyment  of  all  the  surface  included  within  the  lines 
of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which 
lies  inside  of  such  surface-lines  extended  downward  ver- 
tically, although  such  veins,  lodes,  or  ledges  may  so  far 
depart  from  a  perpendicular  in  their  course  downward  as 
to  extend  outside  the  vertical  side-lines  of  such  surface 
locations. 


168  APEX. 

Limitation  to  Planes  of  Projected  End  Lines. 

But  their  right  of  possession  to  such  outside  parts 
of  such  veins  or  ledges  shall  be  confined  to  such  portions 
thereof  as  lie  between  vertical  planes  drawn  downward  as 
above  described,  through  the  end-lines  of  their  locations, 
so  continued  in  their  own  direction  that  such  planes  will 
intersect  such  exterior  parts  of  such  veins  or  ledges. — Sec. 
3,  May  10,  im. 

The  mining  Act  of  1866  which  was  the  first  pro- 
vision for  advancing  possessory  claims  to  patent 
provided  that  the  applicant  should  be  granted  "such 
mine,  together  with  the  right  to  follow  such  vein  or 
lode  with  its  dips,  angles  and  variations,  to  any 
depth,  although  it  may  enter  the  land  adjoining, 
which  land  adjoining  shall  be  sold  subject  to  this 
condition." 

The  Act  of  1872  made  a  material  change  by  pro- 
viding that  the  end  lines  of  every  lode  claim  should 
be  parallel  and  that  these  end  lines  protracted  should 
become  bounding  planes  between  which  the  proprie- 
tor of  the  apex  should  have  the  right  to  follow  his 
vein. 

The  theory  of  th'e  Act  was  that  a  survey  would 
enclose  a  vein  along  its  center  line  from  end  to  end 
and  that  the  end  lines  would  be  at  right  angles  to 
the  strike  of  the  vein.  But  there  are  few  locations 
where  the  miner  is  so  fortunate  as  to  place  his 
stakes  so  as  to  comply  with  such  theory.  The  course 
of  the  lode  when  located  or  when  surveyed  for  pat- 
ent is  generally  a  matter  more  or  less  of  conjecture 
and  even  if  known,  the  vicinity  of  prior  claims  may 
interfere  with  the  desired  survey  and  there  being  no 
requirement  that  the  side  and  end  lines  must  be  at 
right  angles  it  is  found  in  practice  that  many  diffi- 
cult points  arise  upon  most  of  which  by  this  time 
there  is  a  satisfactory  judicial  conclusion. 

The  common  law  grant  of  lands  conveys  the  sur- 
face and  whatever  minerals  underlie  the  surface 
within  lines  drawn  perpendicularly  downward  to- 
ward the  center  of  the  earth. 

The  apex  clause  in  the  act  modifies  the  common 
law  by  enlargement  to  the  extent  that  the  claimant 


APEX.  169 

owns  and  may  follow  any  lode  whose  apex  he  cov- 
ers, beyond  his  side  lines  under  land  adjoining.  On 
the  other  hand  he  is  not  the  owner  of  lodes  found 
within  his  lines  extended  downward  vertically  where 
such  lodes  have  their  apexes  outside  of  his  surveyed 
lines. — Roxanna  Co.  v.  Cone,  100  F.  168. 

Besides  the  right  to  follow  his  own  vein  on  the 
dip,  he  is,  under  the  common  law  grant  of  the  pat- 
ent, owner  of  the  soil  and  rock  within  his  lines 
carried  vertically  downward. 

'1  his  common  law  grant  gives  him  the  ownership 
of  any  deposit  of  mineral  belonging  to  a  class  which 
has  no  apex  and  also  of  any  lode  which  though  it 
have  an  apex,  such  apex  is  not  located  upon  or  is 
surveyed  in  such  form  as  to  give  no  extra-lateral 
rights  to  the  proprietor  of  such  exterior  location. 

The  above  general  proposition  must  «be  under- 
stood with  reference  to  certain  limitations  and  con- 
ditions as  follows: 

The  Lode  Must  Have  An  Apex. 

The  outcrop  or  edge  of  a  vein  or  deposit  is  not 
necessarily  its  jipex.  The  typical  or  true  fissure 
vein  is  a  narrow  zone  of  ore-bearing  rock  descend- 
ing indefinitely  in  depth.  It  is  essentially  a  per- 
pendicular formation,  though  always,  or  nearly  al- 
ways, inclining  some  degrees  from  true;  this  in- 
clination is  called  its  dip.  The  bounding  planes  of 
such  vein  are  called  its  walls.  The  outcrop  or  near- 
est approach  of  such  a  vein  to  the  surface  is,  and 
always  has  been,  properly  styled  its  apex.  Such  were 
the  veins  generally  known  and  worked  on  the  Pa- 
cific slope  at  the  time  of  the  passage  of  the  Mining 
Acts. 

To  give  such  veins  the  right  to  their  dip  was 
essential  to  their  full  use  and  enjoyment. 

Other  classes  of  veins  are  essentially  horizontal 
in  their  formation.  If  found  to  approach  the  per- 
pendicular such  fact  is  accidental,  not  incidental — 
occasional  and  rare,  not  usual  or  normal.  They  may 
be,  like  coal,  a  layer  of  rock  itself  constituting  a 


170  APEX. 

separate  geological  stratum;  or  they  may  be  a  fill- 
ing between  the  planes  of  contact  of  two  dissimilar 
formations;  or  they  may  be  impregnations  diffused 
irregularly  through  a  broad  zone.  Such  deposits  are 
called  beds  or  even  fields,  terms  obviously  inappli- 
cable to  perpendicular  deposits.  Their  upper  bound- 
ary rock  is  commonly  and  properly  called  the  roof — 
rarely  the  wall;  and  while  they  may  have  an  out- 
crop, such  outcrop  was  never  known  among  miners 
as  an  "apex"  until  the  use  of  such  term  in  the  Min- 
ing Acts  induced  the  attempt  to  abuse  the  term  by 
imposing  it  upon  the  outcrop  of  horizontal  forma- 
tions. 

The  term  itself  means  the  top  or  highest  point, 
and  has  no  significance  when  applied  to  horizontal 
deposits. 

Blanket  Veins. 

In  the  case  of  Duggan  v.  Davey,  26  N.  W.  901 
(Dakota),  where  an  eight-degree  vein  having  its  out- 
crop on  the  side  of  a  hill  was  claimed  throughout 
its  entire  extent  by  those  who  had  their  location 
upon  the  outcrop,  the  court  ruled  that  such  lode 
had  no  apex  and  that  a  location  on  the  dip,  although 
made  after  a  location  on  the  outcrop,  was  valid,  and 
that  the  outcrop  claim  eould  not  follow  beyond  its 
side  lines. 

The  case  of  Oilpin  v.  Sierra  Nevada  Co.  23  P. 
5^7,  also  intimates  that  blanket  veins  cannot  claim 
to  have  an  apex  under  the  Mining  Acts.  The  in- 
clines on  the  deposit  in  that  instance  as  worked 
ran  from  the  surface  up,  instead  of  down. 

In  the  Leadville  and  Aspen  cases  arising  upon 
veins  of  the  character  last  above  described,  in  the 
United  States  Circuit  Court  at  Denver,  any  such  dis- 
tinction as  above  made  has  not  been  recognized.  But 
the  strict  ruling  on  other  points,  that  there  should 
have  been  no  prior  location  on  the  dip;  that  the  apex 
location  must  be  made  on  a  vein  in  place,  and  the 
necessity  of  having  the  apex  parallel  to  the  side,  and 
not  parallel  to  the  end  lines,  which  is  a  practical 


APEX.  171 

impossibility  when  the  real  deposit  is  a  deeply  im- 
bedded field,  bed  or  basin,  -with  a  more  or  less  circu- 
lar rim.  have  circumscribed  and  practically  defeated 
most  attempts  to  follow  such  veins  on  their  dip. 

The  strength  of  this  position  is  increased  by  an 
attempt  to  apply  the  apex  law  to  such  deposits  as 
the  lead  and  zinc  beds  at  Joplin,  Missouri.  There  the 
country  for  miles  is  underlaid  by  a  stratum  carrying 
zinc  and  lead  ore.  The  miner  starts  a  shaft  in  the 
open  prairie,  without  any  indications  whatever,  of 
mineral,  and  at  a  certain  depth  confidently  expects 
to  pierce  this  ore-bearing  stratum  which  is  substan- 
tially a  flat  underlying  deposit,  the  outcrop  of  which 
may  be  miles  distant — if  it  have  any  outcrop  at  all 
it  is  only  when  some  bluff  or  ravine  would  expose 
the  edge  of  the  bed  at  the  surface.  As  to  such  de- 
posits it  is  obvious  that  there  is  no  such  thing  as 
locating  a  claim  so  many  feet  on  each  side  of  the 
center  of  the  vein,  for,  as  the  Department  holds: 
"The  apex  of  the  lode  is  coextensive  with  the  side 
lines."— 29  L.  D.  689.  In  Iron  8.  Co.  v.  M.  d  8.  Co. 
1'iS  U.  8.  894,  the  opinion  refers  to  this  distinction 
and  recognizes  the  validity  of  such  blanket  lode 
locations,  treating  this  incident  of  no  apex  proper  as 
an  item  of  minor  importance.  Blanket  veins  must 
be  located  as  lode  claims  and  not  as  placers. — Iron  8. 
Co.  v.  Campbell  17  Colo.  2?/. 

The  End  Lines  Must  be  Parallel. 

When  we  claim  the  right  to  follow  a  vein  on 
its  dip  as  it  leaves  its  side  lines  and  plunges  into 
the  earth  it  is  obvious  that  we  are  at  once  dealing 
with  a  third  dimension  rarely  referred  to  in  sur- 
face grants.  It  is  also  obvious  that  unless  this  third 
dimension  is  guided  by  parallel  planes  the  claim  will, 
if  the  end  lines  diverge,  extend  indefinitely  as  it 
goes  down.  If  they  converge,  it  would,  like  a  wedge, 
diminish  to  a  line.  The  statute  therefore  in  terms 
requires  end  lines  to  be  parallel  and  that  require- 
ment has  no  reasonable  meaning  except  as  taken  in 
connection  with  the  right  to  follow  the  lode  on  the 
dip.  If,  therefore,  the  locator  fail  or  neglect  to 


172  APEX. 

make  his  end  lines  parallel  he  is  in  disobedience  of 
the  terms  of  the  Act,  by  either  fault  or  misfortune, 
and  has  no  right  to  this  statutory  donation.  It  was 
so  ruled  in  Montana  Co.  v.  Clark,  16  M.  R.  80,  where 
the  claim  was  surveyed  as  a  triangle  which  could 
not  geometrically  have  two  parallel  lines.  The  same 
in  the  Elgin  case,  15  M.  R.  64 1,  which  had  a  sur- 
vey in  the  shape  of  a  horseshoe.  In  both  these  cases 
the  reason  for  the  parallelism  of  end  lines  is  fully 
stated. 

The  Eureka  case,  4  Sawy.  302;  9  M.  R.  578,  has 
been  cited  (Horswell  v.  Ruiz,  67  Cal.  Ill ;  15  M.  R.  489) 
as  ruling  that  the  requirement  of  end  lines  is  di- 
rectory merely  and  that  no  consequences  attach  to 
its  neglect,  but  the  further  details  of  the  opinion 
(on  page  596)  much  qualify  the  words  to  that  effect 
used  on  page  593.  We  can  see  no  reason  why  a  sur- 
vey without  parallel  end  lines  should  be  void  for  the 
ground  within  its  lines,  nor  can  we  conceive  that  it 
should  be  allowed  extralateral  rights  if  it  do  not  have 
end  lines  substantially  parallel.  But  the  case  of 
Doe  v.  Sanger,  23  P.  365,  decides  in  terms  that  the 
end  lines  need  not  be  parallel  and  that  they  do  not 
affect  the  right  to  follow  the  lode  on  the  dip  for  the 
weakest  of  all  reasons  in  statutory  construction,  to 
wit:  because  the  requirement  of  parallelism  and  the 
grant  of  the  dip  are  contained  in  two  different  sec- 
tions of  the  Mining  Act. 

It  is  evident  from  the  language  used  and  the 
'plats  in  Walrath  v.  Champion  Co.  Ill  U.  8.  294,  in 
the  Stone  Lode  case,  118  U.  S.  196;  15  M.  R.  641,  and 
other  decisions  that  practically  a  lode  may  be  sur- 
veyed in  any  shape  which  a  locator  chooses  to  give  to 
his  lines. 

That  there  is  no  requirement  that  every  claim 
be  substantially  a  parallelogram  or  must  have  two 
endlines  and  two  sidelines.  But  no  such  irregular 
survey  has  ever  been  allowed  extralateral  rights  ex- 
cept in  the  case  of  Doe  v.  Sanger,  supra.  Such  a  lo- 
cation is  good  for  its  surface  ground  and  for  such 
parts  of  veins  (not  held  by  location  on  the  apex  out- 


APEX.  173 

side)  as  may  be  found  within  its  vertical  planes. — 
L'ruicn  Point  Co.  v.  Buck,  97  F.  ) 

Apex  "rights  may  be  claimed,  although  the  clear 
ground  is  a  triangle,  if  the  projected  end  lines  are 
parallel.— McEUigott  v.  Krogh,  90  P.  823. 

Locations  under  the  Act  of  1872  to  claim  extra- 
lateral  rights  must  have  parallel  end  lines. — Daggett 
r.  Yreka  M.  Co.  86  P.  974.  The  Department  has  held 
that  end  lines  must  have  suustantial  existence,  and 
that  two-tenths  of  a  foot  in  length  is  not  an  end  line 
within  the  meaning  of  the  statute. — 34  L.  D.  470;  35 
Id.  22. 

End  Lines  Under  Act  of  1866. 

It  has  been  constantly  held  that  patents  perfect- 
ing locations  older  than  the  Act  of  May  10,  1872,  may 
have  extralateral  rights  without  the  necessity  of 
parallel  end  lines,  and  where  the  end  lines  converge 
they  may  be  protracted.  Carson  City  Co.  v.  North 
Star  Co.  75  Fed.  597:  Central  Co.  v.  E.  Central  Co. 
79  Pac.  834.  (Affd.  E.  C.  Co.  v.  C.  E.  Co.  204  U.  8. 
266.)  In  Argonaut  Co.  v.  Kennedy  Co.  21  M.  R.  163; 
63  Pac.  148t  where  the  end  lines  diverged  the  dip 
right  was  given  at  right  angles  to  the  strike  of  the 
vein.  If  the  Argonaut  case  is  correct  and  if  par- 
allelism of  end  lines  is  not  required,  then  we  see  no 
reason  for  drawing  the  distinction  between  end  lines 
converging  or  divoriring  nor  why  the  former  should 
not  enjoy  equal  dip  rights  with  the  latter. 

The  Lode  Crossing  Both  Side  Lines. 

In  the  case  of  Flagstaff  Co.  v.  Tarbet,  98  U.  fif. 
463,  9  M.  R.  607,  the  Supreme  Court  of  the  United 
States  at  an  early  date  held  where  the  lode  crossed 
from  side  line  to  side  line  at  practically  a  right  angle 
to  its  survey,  that  in  such  case  the  side  lines  became 
end  lines,  that  is  to  say:  They  passed  down  through 
the  lode  vertically  and  cut  off  all  extralateral  rights. 
This  decision  has  been  uniformly  followed  in  all 
cases  where  the  lode  has  been  found  to  leave  its  lo- 
cated or  patented  area  through  both  sides  lines. — 
King  v.  Amy-Silversmith  Co.  152  U.  8.  222;  Argen- 


174  APEX. 

tine  Co.  v.  Terrible  Co.  122  U.  8.  478;  Parrot  Co.  v. 
Heinze,  64  Pac.  826;  8.  Nev.  Co.  v.  Holmes  Co.  73 
P.  759. 

The  Lode  Leaving  One  Side  Line. 

After  much  greater  contention  than  in  the  in- 
stance of  the  lode  crossing  from  side  line  to  side 
line,  it  has  now  been  repeatedly  held  that  where  the 
lode  leaves  the  claim  through  one  end  line  and  one 
side  line  it  preserves  its  extralateral  rights,  to  wit: 
the  right  to  follow  the  vein  on  its  dip  from  the  end 
line  to  the  point  on  the  side  line  where  it  leaves 
the  claim.  Such  end  line  is  protracted  vertically 
downward  and  produced  on  its  course  to  form  a 
bounding  plane  and  the  other  bounding  plane  is 
found  by  protracting  and  producing  another  line 
parallel  to  the  end  line  plane  across  the  claim  at  the 
point  where  the  vein  goes  out.  Last  Chance — Tyler 
case,  54  F.  284;  61  F.  557;  Cons.  Wyoming  Co.  v. 
Champion  Co.  63  F.  540;  Del  Monte  and  Last  Chance 
case,  66  F.  212;  171  U.  8.  56;  Clark  v.  Fitzgerald,  171 
U.  8.  92;  Carson  City  Co.  v.  North  Star  Co.  73  F.  597. 

Divergence  from  Same  Side  Line  Twice. 

In  Catron  v.  Old,  48  P.  687;  18  M.  R.  569,  the 
Fulton  survey  had  an  angle  in  the  center  making  it 
a  V  shaped  claim;  crossing  the  diverging  halves  the 
lode  left  the  location  twice  through  the  south  side 
line,  the  diagram  of  the  conflict  being  as  follows: 


The  Supreme  Court  of  Colorado  held  that  the 
Fulton  Lode  had  no  right  to  follow  the  vein  upon 
the  dip  into  any  ground  beyond  its  side  line  carried 


APEX.  175 

down  vertically,  and  the  correctness  of  such  ruling 
could  not  be  seriously  disputed  under  the  authority 
of  the  Amy-Silversmith  Case. 

Discovery  on  the  Dip. 

In  Van  Zandt  v.  Argentine  Co.  2  McCr.  159,  4  M- 
It.  ///.  it  was  held  that  a  prior  discovery  on  the  dip 
would  hold  against  a  junior  discovery  on  the  apex 
above.  It  is  also  obvious  that  all  tunnel  discoveries 
must  necessarily  be  made  on  the  dip  and  their  val- 
idity has  never  been  doubted.  Jones  v.  Prospect  Co. 
SI  P.  '//-'•  Where  the  width  of  the  claim  is  sufficient 
to  allow  the  apex  to  be  within  the  side  lines  all 
doubt  on  the  point  ceases,  but  where  the  vein  dis- 
covered on  the  dip  apexes  in  foreign  ground  it  is 
argued  .that  it  never  becomes  the  property  of  the  lo- 
cator; that  though  he  may  rightfully  plant  his  dis- 
covery shaft  on  the  dip  he  must  so  locate  as  to  cover 
the  apex  above  the  point  of  discovery  with  his  sur- 
vey.— Lindley  on  Mines,  §  864.  See  S3  L.  D.  142. 

The  case  is  stronger  for  such  a  discovery  after 
patent,  for  there  then  arises  a  presumption  that  the 
patent  was  based  on  a  valid  discovery.  If  there  be  a 
valid  discovery  the  patent  should  certainly  convey 
the  vein  upon  which  such  discovery  was  made;  and 
the  equity  of  the  case  in  favor  of  such  an  instance, 
whether  location  or  patent,  is  to  urge  strongly 
against  such  close  construction  as  would  deprive  the 
discoverer  of  his  asserted  rights. 

In  Colo.  Cent.  Co.  v.  Turck,  50  F.  888,  54  F. 
262,  a  junior  patent  was  allowed  to  take  the  vein  on 
the  dip  underlying  a  patent  whose  discovery  shaft 
was  on  the  same  vein,  but  the  vein  of  which  was  as- 
sumed to  leave  the  side  lines  on  its  strike,  though  it 
dipped  back  and  remained  between  them  carried  ver- 
tically downward. 

The  Common  Law  Grant  of  the  Patent — Veins 
Cut  Within  the  Lines,  Apexing  Outside. 
The  literal  grant  of  a  patent  issued   under  the 
Mining  Acts  reads  as  if  it  conveyed  all  veins  apex- 
ing  within   the  lines  and  excluded  all  those  whose 


176  APEX. 

apexes  were  outside.  And.  such  is  its  clear  meaning 
where  a  prior  location  has  covered  the  apex  of  such 
veins  found  to  dip  underneath  a  junior  claim.  But 
where  in  sinking,  veins  or  deposits  are  found  which 
have  either  no  apex,  or  an  apex  not  located  upon  out- 
side, or  an  apex  not  located  upon  at  the  date  of  the 
patent  under  which  such  veins  or  deposits  are  found, 
to  whom  do  such  veins  or  deposits  belong? 

The  decisions  have  with  great  uniformity  held 
that  such  new  discoveries  presumptively  belong  to 
the  patentee  and  refuse  to  give  a  literal  construction 
to  the  patent.  The  case  is  fully  stated  and  the  point 
ruled  in  Doe  v.  Waterloo  Co.  54  F.  935,  following 
Duggan  v.  Davey,  26  N.  W.  887;  Leadville  Co.  v.  Fitz- 
gerald, 4  M.  R.  385. 

In  Montana  Co.  v.  Clark  the  ruling  was  made 
that  such  veins  apexing  outside,  but  not  located  out- 
side, remained  still  the  property  of  the  United 
States.— 16  M.  R.  80;  42  F.  626. 

This  ruling  is  theoretically  correct  and  such  vein 
or  part  of  a  vein  would  become  the  estate  of  any 
locator  who  made  a  proper  location  upon  such  apex 
outside.  But  it  often  happens  that  all  the  surface 
ground  has  been  taken  up  in  such  form  that  while 
the  apex  is  covered  it  is  covered  in  such  shape  as 
to  allow  no  extralateral  rights  and  where  such  is 
the  case  the  portions  of  the  vein  in  such  position 
belong  to  the  party  whose  survey  includes  them 
within  the  vertical  planes  of  his  side  and  end  lines. — 
Parrot  Co.  v.  Heinze,  64  P.  326;  State  v.  District 
Court,  65  P.  1020. 

In  Roxanna  Co.  v.  Cone,  100  F.  168,  the  Court  re- 
fused to  enjoin  in  favor  of  the  common  law  right  of 
the  complaining  lode  which  confessedly  had  no  apex, 
the  owners  of  all  the  claims  which  might  assert  apex 
rights  not  being  defendants  to  the  suit. 

Exception  of  Such  Veins  in  Favor  of  Proprietor 

of  Other  Lodes. 

In  Pacific  Coast  Co.  v.  Spargo,  16  F.  348,  16  M. 
R.  75,  and  Amador  Co.  v.  South  Spring  Co.  36  F. 


APEX.  177 

668,  it  was  held  that  the  exception  of  veins  apexing 
outside,  in  favor  of  the  proprietors  of  such  veins, 
should  be  confined  to  instances  where  the  rights  of 
siu-h  proprietors  were  in  existence  at  the  time  of  the 
grant  to  the  patentee  whose  claim  was  underlaid  by 
such  veins.  But  all  the  later  decisions  refuse  to 
recognize  this  distinction,  and  treat  the  exception  as 
one  standing  for  the  benefit  of  future  as  well  as  pres- 
ent proprietors. — Turck  case,  supra;  Cheesman  v. 
Hart,  16  M.  R.  263;  42  F.  98. 

An  Owner  May  Amend  His  Survey,  even  after 
patent  applied  for,  to  keep  his  vein  within  his  short- 
ened claim,  by  making  a"  new  end  line  and  dropping 
that  portion  into  which  no  vein  extends. — Last 
Chance  Co.  v.  Tyler  Co.  61  F.  557.  And  may  amend 
to  correct  diverging  end  lines. — Doe  v.  Sanger,  23 
P.' 365.  In  both  these  instances  the  amendments 
were  allowed  after  other  claims  had  been  located 
based  on  the  supposed  effect  of  the  original  error 
upon  the  rights  of  parties  to  adjoining  ground. 

The  right  so  to  amend  is  undeniable,  but  to  allow 
such  amendment  to  operate  to  divest  rights  already 
vested  in  the  underlie  is  more  than  questionable.  We 
can  see  no  difference  between  an  estate  vested  in  an 

a  lateral  portion  of  a  lode  and  an  estate  vested  in 
the  surface  of  the  same. 

Apex  Covered  by  Several  Patents. 

Where  there  are  several  contiguous  patents  the 
dip-right  of  each  must  be  treated  as  a  separate  grant. 
The  two  patents  cannot  be  considered  together  so 
as  to  treat  them  as  if  they  were  one  patent  enclos- 
ing the  apex  of  the  vein. — Del  Monte  Co.  v.  New  York 
Co.  66  F.  212.  On  the  other  hand  in  Carson  City 
Co.  v.  North  Star  Co.  13  F.  598,  where  the  owner  of 
several  irregular  locations  had  patented  them  to- 
gether they  were  treated  as  one  claim,  enlarging  to 
extreme  limits  the  doctrine  of  Smelting  Co.  vs.  Kemp, 
104  U.  S.  636,  11  M.  R.  673,'  where  the  distinction  is 
made  between  a  location  and  a  claim. 


178 


APEX. 


There  can  be  but  One  Set  of  End  Lines,  for  all 
the  veins  covered  by  the  patent.  And  where  de- 
parture from  one  or  both  side  lines  renders  it  mate- 
rial, only  the  discovery  vein  can  be  used  to  determine 
what  are  the  planes  of  the  end  lines. — Walrath  v. 
Champion  Co.  Ill  U.  8.  293;  Cosmopolitan  Co.  v. 
Foote,  101  F.  518;  St.  Louis  Co.  v.  Montana  Co.  104 
F.  664;  Jefferson  Co.  v.  Anchoria  Co.  15  P.  1010. 
The  only  decision  inconsistent  with  this  ruling  seems 
to  be  Ajax  Co.  v.  Hilkey,  12  P.  441,  which  allows 
extralateral  rights  to  a  secondary  vein  apexlng 
within  the  claim  beyond  the  point  at  which  the  dis- 
covery vein  left  the  side  line- 

Eelation  of  End  Line  to  Strike. 

The  extralateral  rights  being  defined  by  extend- 
ing the  end  lines  as  parallel  vertical  planes,  it  -is 
apparent  that  unless  the  end  lines  are  at  an  exact 
right  angle  to  the  vein,  which  they  rarely  are,  the 
grant  of  the  patent  is  not  the  grant  of  the  right  to 
follow  down  on  the  dip,  underneath  the  same  feet  of 
apex  enclosed.  On  the  contrary  there  must  be  a  gain 
in  one  direction  and  a  corresponding  loss  in  the 
other.  The  following  diagram  will  illustrate  this. 


APEX.  179 

The  Senior  and  Junior  lodes  above  are  on  the 
same  vein,  the  Senior  located  obliquely  to  the  apex. 
The  Junior  is  correctly  laid  on  the  strike  of  the  vein. 
The  Senior  is  the  older  patent.  By  the  dashed  lines 
the  Senior  loses  the  bottom  of  its  own  shaft  and  cuts 
off  the  shaft  of  the  Junior  lode.  The  dotted  lines 
and  the  shafts,  of  course,  are  at  right  angles  to  the 
strike  of  the  vein. 

Right   to   the   Vein   Within   the   Four   Vertical 
Planes. 

Although  where  the  lode  crosses  from  side  line 
to  side  line  it  loses  its  extralateral  rights,  the  claim- 
ant has  a  certain  compensation  by  being  allowed  to 
follow  on  the  dip  to  his  end  line. 

Where  a  dipping  lode  crosses  from  side  line  to 
side  line,  in  following  it  down,  it  is  obvious  that  two 
shafts  sunk  on  the  vein  at  the  two  points  where  it 
leaves  the  side  lines  will  enclose  between  them  all 
that  part  of  the  vein  the  apex  of  which  is  within  the 
patent— Lode  Y,  Plat  X,  p.  183. 

The  right  to  the  part  of  the  lode  between  such 
two  shafts  in  going  down  is  lost  as  soon  as  the  ver- 
tical plane  of  the  south  side  line  is  reached.  This  is 
the  ground  marked  B  on  Plat  X.  The  vein  below  on 
B  he  does  not  own.  On  the  other  hand,  he  retains 
all  of  C,  which  is  the  vein  within  the  vertical  planes 
of  his  side  lines  and  end  lines. 

A  patentee  following  down  on  the  dip  cannot  take 
the  vein  where  he  finds  it  between  vertical  side  and 
end  lines  of  a  prior  location  whose  vein  crosses 
both  its  side  lines. — Tyler  Co.  v.  Last  Chance  Co.  11 
F.  848;  157  U.  8.  684;  Argentine  Co.  v.  Terrible  Co. 
122  U.  8.  418. 

The  vein  may  be  followed  between  the  planes  of 
its  end  lines  although  they  are  at  such  angle  to  the 
vein  as  to  follow  the  strike  rather  than  the  dip. 
Bunker  Hill  Co.  v.  Empire  State  Co.  134  F.  268. 
And  where  a  segment  is  cut  out  of  the  lode  by  the 
dip  rights  of  another  lode  the  ore  beyond  the  segment 
belongs  to  the  junior  lode.  Id. 


180  APEX. 

Following  Lode  Beyond  End  Line. 

In  the  Flagstaff  Case,  the  Federal  Supreme  Court 
use  this  language:  "The  side  lines  of  the  location 
are  really  the  end  lines  of  the  claim."  In  Last  Chance 
Co.  v.  Tyler,  151  U.  S.  £87,  it  says  "the  side  lines  of 
that  location  become  the  end  lines  land  the  end  the 
side  lines."  The  use  of  this  expression  is  far  from 
holding  that  extralateral  rights  may  be  pursued  be- 
yond the  end  line.  In  neither  of  these  cases  was  the 
ground  actually  in  controversy  beyond  the  end  lines 
of  any  of  the  claims  in  dispute,  so  that  the  expres- 
sions quoted  are  only  dicta  in  both  instances. 

The  grant  of  a  patent  is  of  a  piece  of  land  with 
an  extralateral  grant  upon  a  certain  condition,  to  wit: 
that  its  lines  enclose  the  apex  of  a  vein,  which 
vein  extends  "outside  the  vertical  side  lines"  of  its 
survey.  If  its  lines  enclose  such  apex  from  end  line 
to  end  line  or  from  end  line  to  side  line,  the  condition 
exists  and  its  extralateral  right  is  established. 

In  the  proposition  that  where  it  has  a  vein  going 
through  both  side  lines  it  can  follow  such  vein  be- 
yond its  end  line  there  is  no  assertion  of  a  condition 
which,  having  been  fulfilled,  some  right  accrues  as 
the  incident  to  the  compliance  with  the  condition. 

The  statute  expressly  gives  the  right  to  go  be- 
yond the  side  line  upon  the  existence  of  the  condi- 
tion; it  does  not  give  such  right  to  go  beyond  an 
end  line.  Nor  is  there  any  known  principle  of  law 
which  would  enlarge  a  grant  in  derogation  of  the 
common  law,  and  therefore  to  be  strictly  construed 
— by  allowing  the  grantee  who  fails  to  come  within 
the  terms  of  the  condition  of  his  grant  to  be  com- 
pensated out  of  other  lands  upon  the  supposition  of 
an  implied  condition  to  that  effect. 

And  yet  the  contrary  is  strongly  contended  for 
(Lindley,  §  589),  and  in.  the  only  suit  where  the 
point  has  directly  arisen,  a  case  arising  on  an  ore 
contract  made  in  Arizona  and  sued  on  in  Connecti- 
cut, the  holding  was  made  that  the  vein  could  be 
pursued  beyond  its  end  line. — Empire  Co.  v.  Tomb- 
stone Co.  100  F.  910;  131  F.  339. 


APEX.  181 

Also,  in  Bunker  Hill  Co.  v.  Empire  Co.  109  F.  558, 
the  point  was  conceded  to  the  same  effect,  but 
in  that  case  all  the  claims  involved  were  surveyed 
squarely  across  the  strike,  so  that  neither  had  any 
status  as  to  the  ore  in  contention  unless  it  was  so 
conceded. 

When  a  lode  is  recorded  it  is  a  publication  to 
the  world  that  a  party  claims  all  veins  within  its 
lines  with  the  right  to  follow  on  the  dip  between 
the  end  lines  protracted.  It  is,  as  well,  a  disclaimer  of 
all  other  rights.  The  record  shows  which  lines  are 
claimed  as  side  lines  and  which  as  end  lines.  Sub 
sequent  to  such  location  so  recorded  and  published 
the  lode  is  cut  on  the  dip  beyond  the  located  end 
lines  by  tunnel.  The  discoverer  by  tunnel,  locates 
records  and  by  his  own  exploitation  discloses  that  he 
is  on  a  vein,  which  when  followed  to  the  surface 
brings  it  within  the  first  location  whereupon  such 
first  location  claims  the  ore  by  its  pretended  right 
to  follow  the  vein  beyond  its  end  lines. 

W.»  will  never  concede  unless  and  until  com- 
pelled by  binding  authority  that  by  the  mere  allite- 
ration of  language  "side  lines  become  end  lines," 
"end  lines  become  side  lines,"  that  the  first  locator 
can  defeat  the  rights  of  such  tunnel  discovery,  but 
hold  that  he  is  estopped  by  his  record  to  claim  the 
right  to  pass  beyond  what  he,  by  his  own  act,  has 
made  his  end  lines. 

Recapitulation — Explanation  of  Plat  X. 

The  plat  on  page  18S  will  illustrate  several  of 
the  instances  above  mentioned.  It  represents  a  vein 
covered  by  a  location  from  end  line  to  end  line; 
another  location  where  the  vein  crosses  from  side 
line  to  side  line,  and  a  third  location  where  the  vein 
crosses  one  end  line  and  one  side  line.  The  dip  of 
the  vein  is  to  the  south,  that  is,  to  the  foot  of  the 
plat. 

The  X  location  owns,  of  course,  its  entire  sur- 
vey and  may  follow  the  vein  on  its  dip  between 


182  APEX. 

its  vertical  end  lines  extended  downward  indefi- 
nitely. 

Y  owns  the  vein  in  the  triangle  A.  He  does 
not  own  B.  On  the  other  hand,  he  does  own  C, 
being  that  part  of  the  vein  between  his  vertical  side 
and  end  lines,  unless  X  is  the  older  location,  in 
which  case  he  loses  to  X  the  greater  part  of  C. 

As  to  whether  Y  has  any  estate  in  D,  being  the 
extension  of  his  vein  beyond  his  end  line,  is  the 
question  discussed  on  page  180. 

Z,  whose  vein  leaves  one  end  line  and  one  side 
line,  is  the  owner  of  the  parcel  E,  and  the  parcel  F, 
the  vein  on  the  dip,  to  the  extent  of  his  extralateral 
rights.  He  can  not  follow  into  G.  The  vein  in  G 
becomes  the  property  of  whoever  may  disclose  and 
locate  the  apex  in  the  vacant  ground  between  Y 
and  Z. 


APEX. 


183 


*       O     % 


184  APEX. 

Presumption — Burden  of  Proof. 

The  presumption,  where  a  miner  is  found  be- 
yond his  side  lines,  is  against  him.  He  is  prima 
facie  a  trespasser  till  he  has  shown  that  he  gets 
there  by  following  the  lode  on  its  dip  from  its  apex 
within  his  lines. — Cheesman  v.  Shreeve,  16  M.  R.  79; 
37  F.  36;  Blue  Bird  Co.  v.  Murray,  23  P.  1022;  Bell 
v.  Skillicorn,  28  P.  768;  Cons.  Wyoming  Co.  v.  Cham- 
pion Co.  63  F.  540;  Iron  8.  Co.  v.  Campbell,  11  Colo. 
267 ;  Duggan  v.  Davey,  4  Dak,  110;  Leadville  Co.  v. 
Fitzgerald,  4  M.  R.  380;  Doe  v.  Waterloo  Co.  54  F. 
935;  Maloney  v.  King,  64  P.  351;  Red  Wing  Co.  v. 
Clays,  83  P.  841;  Gr.  Cent.  Co.  v.  Mammoth  Co.  83 
P.  648. 

But  the  fact  that  the  owner  is  claiming  extra- 
lateial  rights  does  not  prevent  the  application  of  the 
presumption  that  his  surface  bounds  include  his  vein 
in  such  a  manner  as  to  entitle  him  to  extralateral 
rights.— Wakeman  v.  Norton,  24  Colo.  192.  But  the 
proof  of  the  continuity  of  the  vein  downward  must 
be  made. — Butte  Co.  v.  Societe,  58  P.  111. 

The  presumption  that  the  lode  extends  through- 
out the  claim  applies  to  a  lode  location  within  a 
placer. — San  Miguel  Co.  v.  Bonner,  79  P.  1025.  Such 
presumption  yields  of  course  to  the  proof  when  it 
shows  an  outside  apex.  Montana  Co.  v.  Boston  Co. 
70  P.  1114-  But  the  opinion  of  a"n  expert  based  on 
calculation  of  the  dip  through  long  space  of  un- 
broken ground  is  not  enough. — Heinze  v.  Boston  Co. 
77  P.  421. 

The  issue  of  a  patent  raises  a  presumption  that 
the  lode  has  an  apex  within  its  lines. — Iron  8.  Co. 
v.  Campbell,  17  Colo.  272.  And  the  possession  of  the 
apex  is  the  possession  of  the  vein  to  the  full  extent 
of  the  extralateral  right. — Empire  State  Co.  v.  Bunker 
Hill  Co.  121  F.  973;  Montana  Co.  v.  Boston  Co.  71  P. 
1005. 

Parties  have  a  right  to  a  trial  by  a  jury  on 
alleged  apex  rights,  and  equity  has  no  jurisdiction 
of  such  an  issue. — Campbell  v.  Golden  Cycle  Co.  141 
F.  610. 


DIP.  185 

It  is  not  essential  in  trespass  for  ore  taken  from 
the  lode  on  its  extralateral  dip  to  allege  in  terms 
that  the  apex  of  the  vein  is  within  plaintiffs  boun- 
daries. Id. 

The  degree  of  proof  required  of  an  apex  claim- 
ant to  show  continuity  is  considered  in  Daggett  v. 
Yreka  M.  Co.  86  P.  968. 


DIP. 


Dip  is  a  proper  mining  term  and  has  a  plain  and 
important  signification.  It  means  the  line  of  depar- 
ture of  a  lode  from  the  perpendicular.  The  number 
of  degrees  may  of  course  be  calculated  from  either 
the  perpendicular "  or  from  the  horizontal,  and  the 
usage  with  professional  surveyors  is  to  calculate  the 
degrees  from  the  horizontal,  but  miners  generally 
speak  of  a  lode  as  dipping  so  many  degrees  from  the 
perpendicular,  especially  when  referring  to  lodes 
\\<>rked  by  shafts.  It  is  used  along  with  "angles 
and  variations,"  in  the  A.  C.  1866,  and  is  with  those 
words  omitted  in  the  A.  C.  1872,  but  its  place  is 
supplied  by  the  phrase  (§  2322): 

"All  v,  ins.     *     *     *     throughout  their  entire  depth, 
•     *     •     although  such  veins.     *     *     *     may  so  far  depart 
from   a   perpendicular   in    tlx-ir  course   downward   as   to   ez- 
•    outside   the   vertical    side-lines,    of   such   surface    loca- 
tions." 

The  term  is  to  so  great  an  extent  associated  with 
the  terms  APEX  and  DRAINAGE  that  it  has  been  neces- 
sarily to  a  large  extent  considered  under  those  heads. 

Practical  Effect  of  Dip  to  Carry  the  Lode  Away 

from  Its  Surface  Lines. 

A  lode  dipping  to  the  north  will  gain  horizon- 
tally to  the  north  about  1.7  feet  in  100  feet  of  descent 
for  each  degree  from  the  vertical. 

A  shaft  sunk  upon  a  dipping  vein  will,  in  100 
feet  depth,  measured  along  the  dip,  acquire  the  fol- 
lowing vertical  depths  and  horizontal  departures 


186  DIP. 

from  the  top  of  the  shaft  for  the  following  angles,  all 
taken  from  the  horizontal: 

ANGLE  VERTICAL  HORIZONTAL 

DEPTH  DEPARTURE 

10°  17.4  feet  98.5  feet 

20°  34.2  "  94.0  " 

30°  50.0  "  86.6  " 

40°  64.3  "  76.6'  " 

50°  76.6  "  64.3  " 

60°  86.6  "  50.0  " 

70°  94.0  "  34.2  " 

80°  98.5  "  17.4  " 

90°  100.0  "          0.0 

Cubic  Incidents  of  Lode  Claims. 

From  the  outstart  it  should  be  kept  in  view  that 
a  lode  claim  is  a  solid  body  of  ground  and  not  a 
"superficies." — Massot  v.  Moses,  8  8.  C.  168;  8  M.  R. 
607.  Dip  is  only  one  of  the  incidents  of  this  fact. 
A  placer  or  even  a  coal  bed  furnishes  few  analogies 
to  define  the  rights  of  a  claim  which  leaves  the  sur- 
face at  once  and  follows  its  own  course,  governed 
only  by  its  natural  but  invisible  boundaries. 

Estate  in  the  Dipping  Lode. 

Since  the  dip  may  carry  a  lode  under  the  side 
lines  of  an  adjoining  claim,  the  right  to  follow  such 
a  lode  must  indicate  either:  First — An  easement  to 
which  the  adjoining  claim  is  subject,  or,  rather,  Sec- 
ond— An  exception  put  of  the  estate  of  the  adjoining 
claim.  The  maxim  that  ownership  extends  from  the 
surface  to  the  center  of  the  earth  in  vertical  lines, 
in  either  event,  therefore,  does  not  apply;  the  claim 
in  its  downward  course  is  governed  by  the  dip  of  the 
vein  whose  apex  appears  at  the  surface;  it  extends 
under  the  vertical  side  lines  of  the  adjoining  claims 
on  one  side,  and  on  the  other  side  it  leaves  veins 
pitching  under  its  own  side  lines  as  the  property  of 
him  who  is  their  owner  at  the  surface. — Iron  Silver 
Go.  v.  Clieesman,  116  U.  8.  530. 


DIP.  187 

Where  a  lode  cut  in  a  tunnel  has  a  dip  it  will 
be  assumed  that  it  carries  the  same  dip  to  the  sur- 
face.— Brcicster  v.  Shoemaker.  63  P.  309. 

The  Side  or  Auxiliary  Veins,  whose  apices  may 
be  within  the  side  lines  of  the  claim  or  patent  have 
the  same  right  to  the  dip  as  has  the  principal  or 
discovery  vein. — Jupiter  Co.  v.  Bodie  Co.  11  F.  666; 
4  M.  R.  412;  Walrath  v.  Champion  Co.  63  F. 

No  Apex — No  Dip. 

Any  located  or  patented  claim  which  has  been  so 
surveyed  that  its  vein  runs  practically  at  right  angles 
to  the  side  lines  cannot  claim  the  dip  beyond  its  side 
lines.— The  Flagstaff  case,  98  U.  8.  463;  9  M.  R.  607; 
McCormick  v.  Varnes,  2  Ut.  855;  9  M.  R.  506;  Argen- 
tine Co.  v.  Terrible  Co.  122  U.  8.  478,  and  cases  cited 
under  Ari.\. 

Effect  of  End  Lines. 

The  end  lines  of  all  lode  claims  are  required  to 
be  parallel;  and  where  the  lode  in  its  descent  reaches 
the  end  lines  protracted,  the  claim  ceases  and  the 
dip  can  not  be  followed  across  the  protraction  of 
the  end  lines. — Richmond  Co.  v.  Eureka  Co.  103  U.  8. 
839;  9  M.  R.  634;  Stone  Lode  case,  118  U.  8.  196;  15 
M.  R.  641.  To  allow  the  end  lines  to  diverge  is  to 
allow  the  claimant  an  ever  increasing  lineal  extent 
of  vein  as  he  descends.  Page  171. 

When  the  Grantor  Conveys  a  claim  or  part  of  a 
claim  he  conveys  the  right  to  follow  on  the  dip  all 
veins  apexing  within  the  granted  ground. — Stinch- 
field  v.  Gillis,  30  P.  840;  40  Pac.  98;  Boston  Co. 
v.  Montana  Co.  89  F.  529.  This  would  seem  self- 
evident  in  a  conveyance  of  the  entire  claim  or  of 
a  claim  divided  across  from  side  line  to  side  line. 
But  in  every  mining  deed  the  dip  right  should  be 
mentioned  in  express  terms. 


188  WALLS. 

WALLS. 
Defined. 

In  a  contact  vein  the  roof  or  hanging  wall  is  the 
plane  of  the  contact  above;  the  floor  or  foot  wall  is 
the  plane  of  the  contact  below.  In  fissure  veins 
the  walls  are  the  plane  of  demarcation  between  the 
country  and  the  gangue. 

Relation  to  the  Country. 

It  should  seem  almost  self-evident  that  the  na- 
ture of  the  wall  must  depend  upon  the  nature  of 
the  country  rock  and  the  nature  of  the  material 
which  it  encloses.  Between  certain  rocks  the  plane 
of  separation  would  be  distinct  and  traceable;  be- 
tween other  rocks  a  diffusion  of  the  oxides  and  min- 
erals of  the  enclosed  material  through  the  adjoining 
country,  would  obliterate  more  or  less  all  trace  of 
the  original  plane  of  division.  Where  this  plane 
of  division  is  manifest  to  the  eye  there  is  what 
miners  call  a  wall — where  it  has  become  obliterated 
they  say  there  is  no  wall.  It  is  therefore  manifest 
that  the  fact  of  the  absence  of  one  or  both  walls,  is, 
in  itself  alone,  no  proof  of  the  non-existence  of  a 
vein,  they  being  a  mere  accidental  circumstance. 
And  it  has  been  so  decided  in  the  Lime  Lode  case, 
116  U.  8.  530,  and  in  the  Durant  case,  29  F.  S5>, : 
M.  R.  519.  In  the  former  decision,  after  defining  what 
constitutes  a  lode  as  a  "body  of  mineral  or  mineral- 
bearing  rock  within  defined  boundaries,"  MILLER,  J. 
adds:  "In  the  existence  of  such  body  and  to  the  ex- 
tent of  it,  boundaries  are  implied."  In  the  latter  case, 
in  such  language  as  would  be  used  by  a  lawyer  thor- 
oughly familiar  with  the  subject-matter,  HALLETT,  J. 
says:  "It  is  true  that  a  lode  must  have  boundaries, 
but  there  seems  to  be  no  reason  for  saying  that  they 
must  be  such  as  can  be  seen." 

Broken  Ground — Slips — Natural  Cleavage. 

It  is  also  evident  that  subsequent  disturbance 
of  the  vein  matter  would  tend  to  destroy  the  con- 


SPURS.  189 

tinuity  of  the  wall;  and  in  many  classes  of  rock  the 
natural  cleavage  is  such  as  often  to  be  mistaken  for 
and  followed  as  a  wall.  In  such  ground  a  very  little 
manipulation  may  be  made  to  show  an  apparent  wall 
where  none,  in  fact,  exists. 

Disappearance  of  Wall. 

It  is  nevertheless  true  that  where  a  wall  has 
shown  itself  for  some  distance  and  disappears — that 
is  an  important  item  to  be  considered  where  the  fur- 
ther continuity  of  the  vein  is  made  doubtful  by 
reason  of  the  simultaneous  disappearance  of  the  min- 
eral and  an  apparent  change  in  the  rock  which  is 
being  followed.  See  page  ^1. 

Wall  or  Side  of  Working. 

It  is  also  to  be  observed  that  the  term  "wall" 
is  often  used  with  reference  to  the  actual  side  of 
a  drift,  shaft  or  other  working  without  reference 
to  its  association  with  the  vein,  and  finding  mineral 
l>y  "cutting  through  the  wall"  is  spoken  of  as  If  it 
implied  no  contradiction  of  terms. 


SPURS. 


The  word  spurs  is  not  found  in  any  of  the  Acts 
of  Congress  nor  in  the  patents  issued  under  them. 
It  is  a  dangerous  term,  because  its  meaning  is  rela- 
tive, not  definite.  That  which,  when  first  discovered, 
may  be  called  a  spur,  may  prove  to  be  a  better  de- 
veloped vein  than  the  lode  from  which  it  strikes  off. 

But  the  term  found  its  way  into  the  Colorado 
Territorial  Act  of  1866,  and  is  seen  in  most  records; 
when  properly  applied  it  signifies  a  feeder  to,  or  off- 
shoot from,  a  lode.  As  such  it  is  part  and  parcel  of 
the  lode,  at  least  as  far  as  the  side  lines  of  the  claim, 
and  if  it  extended  much  further,  it  could  hardly  be 
called  a  spur. 


190  ANGLES  AND  VARIATIONS. 

,A  spur  is  defined  (Bainbridge,  p.  2,  note),  as  "A 
lateral  branch  from  the  main  lead,  not  returning  to 
it,  but  losing  itself  in  the  surrounding  soil." 

Though  called  a  spur  (which  word  is  apt  to  be 
used  as  a  slurring  term)  it  is  in  law  a  lode  upon 
which  a  valid  title  may  be  founded  if  it  do  in  fact 
show  a  "well-defined  crevice." 

Where  repeated  locations  have  been  made  upon 
a  mineral  vein  it  is  too  late  to  call  it  a  spur,  espe- 
cially where  the  law  fixes  no  limit  to  the  size  of  the 
vein  which  may  be  located,  nor  admits  comparison 
of  different  size  between  conflicting  locations. — Car- 
son City  Co.  v.  North  Star  Co.  73  F.  601. 

When  the  discovery  or  existence  of  a  lode  is  in 
contention,  its  size,  strength,  continuity  and  other 
like  incidents  are  questions  of  fact  to  be  found  by 
the  jury.— Blue  Bird  Co.  v.  Largey,  Jfi  F.  289;  Book 
v.  Justice  Co.  58  F.  106. 

Ore  bodies  formed  off  from  the  fissure  do  not 
form  separate  veins. — Tombstone  M.  Co.  v.  Way  Up 
Co.  1  Ariz.  426. 


ANGLES  AND  VARIATIONS. 


Use  in  Statutes  and  Conveyancing. 

In  §  4,  A.  C.  1866,  the  words  "angles  and  varia- 
tions" were  used,  and  under  the  Act  a  lode  was  pat- 
ented with  its  "angles  and  variations."  They  are 
neither  law  terms  nor  technical  mining  expressions, 
but  are  supposed  to  cover  the  digressions  of  a  lode 
from  a  straight  line,  and  might  be  extended  to 
"faults."  In  arguing  the  important  question  arising 
upon  patents  under  the  old  law  when  the  vein  left 
the  side  lines,  these  words  were  strongly  urged  as 
indicating  the  intention  to  pass  the  vein  as  the  essen- 
tial grant  of  the  patent.  These  words,  or  like  terms, 
are  in  common  use  in  the  phraseology  of  mining 
deeds  (Bullion  v.  Crcesus  Co.  2  Nev.  168;  5  M.  R. 
251)  but  are  not  words  of  essential  description. 


ANGLES  AND  VARIATIONS.  191 

Irregular  Surveys  With  Unnecessary  Angles. 

A  lode  may  and  should  be  surveyed  to  cover  all 
its  angles.  But  acute  angles  such  as  were  attempted 
in  the  Stone  Lode,  leading  to  fantastic  figures, 
widely  different  from  the  parallelogram  intended  in 
the  Act  of  Congress,  even  if  they  have  two  parallel 
courses  which  they  call  end  lines,  run  a  risk  of  being 
ruled  out  of  any  right  to  claim  beyond  their  side 
lines.  In  other  respects  they  may  be  wholly  valid  if 
the  end  lines  are  regular  and  the  statutory  width 
and  length  are  not  exceeded. — Iron  Silver  Co.  v.  El- 
gin Co.  15  M.  R.  641;  118  U.  S.  200. 

Whether  the  presumption  allowed  in  ordinary 
cases  (Armstrong  v.  Lower,  6  Colo.  582)  that  the  sur- 
covers  the  vein  would  be  indulged  to  a  claim 
which  has  acute  angles  may  be  doubted.  Such  pre- 
sumption is  merely  to  fix  the  party  on  whom  is  the 
burden  of  proof,  and  on  an  angled  claim  ought  to 
\u-ltl  io  y«-ry  slight  evidence. 

In  the  case  of  the  Jack  Pot  Lode  the  Department 
required  an  amended  survey  where,  by  assuming  a 
zigzag  shape,  the  width  of  the  claim  exceeded  600 
feet,  and  also  ruled  that  a  long  end  line  parallel  to 
another  end  line  less  than  3  inches  long  could  not 
be  considered  parallel  end  lines  within  the  meaning 
of  the  law.— S4  L.  D.  410. 

Angles  to  Allow  for  Slope. 

But  where  the  lode  has  a  pitch  and  is  located 
on  rising  ground,  especially  where  it  crosses  the  sad- 
dle of  a  mountain  or  passes  through  a  deep  gulch, 
an  angle  or  angles  ought  sometimes  to  be  made,  the 
direction  of  which  will  depend  upon  the  dip  of  the 
lode,  whether  into  or  out  of  the  mountain,  and  the 
extent  of  which  will  depend  upon  the  degree  of  the 
dip.  Such  allowances  are  not  called  for  where  the 
location  is  on  level  ground  nor  even  on  rising  ground 
if  the  lode  runs  directly  up  and  down  hill;  but  are 
essential  under  conditions  familiar  to  surveyors  and 
to  experienced  prospectors,  in  order  to  keep  the  apex 
fairly  between  the  side  lines.  See  page  185. 


192  DRAINAGE. 

DRAINAGE. 


Legislative  Control. 

Sec.  3. — The  general  assembly  may  make  such  regu- 
lations, from  time  to  time,  as  may  be  necessary  for  the 
proper  equitable  drainage  of  mines.-— Colo.  Const.  Art.  XVI. 

Under  the  above  authorization  R.  S.  §§  4226- 
4234,  attempt  to  regulate  this  subject.  Such  State 
control  is  also  recognized  in  section  2338  of  the  U.  S. 
Statutes. 

But  the  subject  itself  is  one  of  inherent  difficulty. 
The  Act  seeks  to  provide  that  where  one  mine  drains 
another,  the  mine  thus  benefited  shall  pay  its  propor- 
tion of  the  cost  of  drainage.  Where  a  tunnel  or  lower 
adit  drains  another  mine,  it  is  doubtful  whether  such 
Acts  have  any  application,  as  such  drainage  is  only 
incidental.— Baird  v.  Williamson,  15  C.  B.  N.  8.  316; 
4  M.  R.  868;  Townsend  v.  Peasley,  35  Wis.  383;  2 
M.  R.  612.  But  where  one  mine  hoists  the  water  of 
another  a  natural  equity  is  more  apparent,  and 
statutes  in  aid  of  contribution,  even  giving  a  royalty 
to  the  draining  mine,  have  been  enforced. — Ahren 
v.  Dubuque  Co.  5  M.  R.  144;  48  la.  140. 

Coal  Mines. 

Where  in  case  of  veins  or  deposits  of  the  class 
represented  by  coal  beds,  one  mine  lies  under  the  dip 
of  another  mine  at  a  higher  level,  it  is  under  servi- 
tude to  the  water  flow  of  the  mine  above. — Philadel- 
phia Co.  v.  Taylor,  5  M.  R.  133;  5  Leg.  Gaz.  892. 

Servitude  of  the  Lower. 

In  lode  mines  the  same  rule  applies — that  the 
lower  workings  must  stand  the  water  from  the 
higher  pits,  subject  to  such  regulations  as  the  Drain- 
age Act  supplies,  where  such  Act  exists  and  its  pro- 
visions can  be  enforced;  and  the  upper  mine  can 
not  wantonly  cast  its  water  on  the  lower.— Locust 
Co.  v.  Gorrell,  9  Phila.  247;  5  M.  R.  129.  The  same 
rule  applies  to  quarries. — Ulmer  v.  Farnsworth,  15 
Atl.  65. 


DITCHES  AND  WATER.  193 

A  Drainage  Contract  Between  Two  Mines  having 
a  common  water  burden  was  construed  and  enforced 
and  a  heavy  judgment  for  damages  sustained,  the 
Court  holding  that  the  relation  of  the  mines  to  the 
common  enemy  was  such  that  there  was  ample  con- 
sideration for  the  promise  to  contribute;  that  a 
promise  to  pay  what  was  proper  and  fair,  the  mines 
being  equally  benefited,  meant  a  promise  to  pay  one- 
half  of  the  expense  and  that  the  managing  agent  of 
the  corporation  had  power  to  make  such  a  contract. 
risk  M.  Co.  v.  Reed,  77  P.  241. 


DITCHES  AND  WATER. 


Congressional  Recognition  of  Easements. 

tt.fi  ;,y  priority  of  possession, 

rights  to  the  us.-  of  prater  for  mining,  agricultural,  maim 

:rillLT.     or     M|»I. -I'     plirpos.-s.     !i:i\.  1     accrued,     and 

ih»-  i    acknowledged    by    the   local 

ili.-   decisions    of    onir;s.    i  in>    possessors 
ami  owners  of  rod  shall  be  maintained  and 

y    fi.r   ihe   con- 

siruciion    «»f    ditch,  -lie    purposes    herein 

i    and    conliniH'd  :    1'iit    whenever    any 

prison,    in    the    roiistrm-iion    of    any    ditch    <»r   canal,    injures 
or    d:  M    of    any    sett  NT    on    the   public   do- 

main,    tin-    party    .-.  .ciinit!  in-    sm-h     injury     or    damage    shall 
l.c   liable  to  tin-  party   injured   for  such   injury  or  damage. — 
186G. 

Excepted  in  Patent. 

K.   R  Ml   patents  granted,  or  pre-emption 

or    hoim>st«>ads    allowed,    shall    !>.-    subject    to    any    vested    ai.d 

riirlits    to    ditches    and    reservoirs 

i  ith  such  \vati-r  rights  as  may  have  been 

a((|uir.-d    nnd»  r    or    recognized    by    the   preceding   section. — 

1870. 

Claims  Subject  to  Ditches,  Flumes  and  Trails — 
Parol  License. 

R.  S.  Colo.  Sec.  421C. — All  mining  claims  now  located 
or  which  i-iay  be  hereafter  located,  shall  be  subject  to  the 
riirlst  of  \\ay  of  ;my  ditch  or  fhnm-  for  mining  purposes,  or 
«.f  any  tramway  or  pack  trail,  whether  now  In  use  or  which 


194  DITCHES  AND  WATER. 

may  be  hereafter  laid  out  across  any  such  location ;  Pro- 
vided, always,  That  such  rijiht  <>f  \\.-iy  shall  not  be  exercised 
iigainst  any  location  duly  made  and  recorded,  and  not  aban- 
doned prior  to  the  establishment  of  the  ditch,  flume,  tram- 
way or  pack  trail,  without  consent  of  the  owner,  except  by 
condemnation,  as  in  cas<>  of  land  taken  for  public  highways. 
Parol  consent  to  the  location  <>f  any  such  easement  accom- 
panied by  the  completion  of  the  same  over  the  claim  shall 
be  sufficient  without  writings;  And  /'rurhlfil  further,  That 
such  ditch  or  flume  shall  be  so  constructed  that  the  water 
from  such  ditch  or  tlunic  shall  not  injure  vested  rights  by 
flooding  or  otherwise. — Felt.  J3,  187}. 

Besides  the  Act  of  1866,  above  printed,  Congress 
allows  right  of  way  to  ditches,  tramways,  reservoirs 
and  power  lines  over  the  public  lands  by  Act  of  1895 
and  its  amendment.— 28  St.  L.  635;  29  Id.  120;  30  Id. 
404- 

The  Right  of  the  Miner  to  Divert  Water  from  its 
natural  stream,  in  opposition  to  the  common  law, 
has  been  not  only  granted  under  the  above  Act 
of  1866,  but  the  doctrine  of  appropriation  has  now 
become  universally  conceded  in  all  the  mining  and 
arid  states  of  the  Pacific  and  Rocky  Mountain 
slopes. — Atchison  v.  Peterson,  1  M.  R.  583;  20  Wall. 
r.oi :  Jennison  v.  Kirk,  4  M.  R.  504;  98  U.  8.  453. 

The  party  who  first  appropriates  the  water  for 
mining,  irrigation  or  other  beneficial  use,  obtains 
the  right  to  use  it  both  as  against  those  who  later 
attempt  to  tap  the  stream  above,  or  who  need  it  in 
the  stream  below.  Neither  agricultural  nor  mining 
uses  have  any  class  priority  one  over  the  other.  The 
first  in  time  is  the  first  in  right.  A  homestead  or 
other  entry  is  subject  to  the  rights  of  a  prior  appro- 
priation of  water. — South  Yuba  Co.  v.  Rosa,  22  P. 
.'.V.  Tynon  v.  Despain,  22  Colo.  240. 

A  Ditch  is  an  Easement  Over  the  Land  which  it 
crosses. — Quinlan  v.  Xoble,  75  Cal.  250.  A  party  can 
not  locate  a  ditch  in  such  a  manner  as  to  prevent 
the  practical  mining  by  hydraulic  power,  or  other- 
wise, of  claims  which  it  crosses;  nor  so  as  to  cut  off 
the  water  used  by  the  hydraulic.  When  ditch  crosses 
ditch,  the  later  claimant  must  adjust  the  crossings 


DITCHES  AND  WATER.  195 

so  as  not  to  interfere  with  the  full  use  of  the  prior 

ditch. — Jcnnifinn   r.  Kirk,  supra. 

Appropriation  by  Placer  Location. 

It  has  been  held  that  a  placer  location  is  of 
itself  an  appropriation  of  all  the  water  flowing 
across  it  to  the  extent  needed  for  working  it. — 
Schwab  v.  Beam,  86  F.  41.  This  is  an  extreme 
holding  and  seems  to  us  an  indefensible  position. 
The  Change  of  Locality  where  the  water  is  used 
B  not  forfeit  the  right. — Maeris  v.  Bicknell  7  Cal. 
262;  1  M.  R.  601.  The  owner  may  change  either  the 
point  of  diversion  or  the  place  of  use. — Telluride  v. 
Davis,  SO  P.  1051;  Strickler  v.  Colo.  Springs,  26  P. 
.11 'i.  If  he  has  prior  risht  to  the  water  he  may  take 
it  by  a  new  and  different  ditch. — Jacob  v.  Lorenz,  33 
/'.  i.>0;  Oreer  v.  Heiser,  16  Colo.  306. 

Intervening  Rights. 

Hut  he  can  not  change  the  point  of  diversion  or 
the  line  of  his  ditch  to  the  injury  of  those  who  have 
in  the  meantime  acquired  rights. — Last  Chance  Co. 
v.  Bunker  Hill  Co.  17  M.  R.  .',.',9:  49  F.  430;  Handy 
Ditch  Co.  v.  Louden  Co.  27  Colo.  515;  /'////</  v.  Swan 
Hirer  Co.  16  M.  R.  258;  19  P.  386.  The  only  case 
which  disregards  the  rights  of  intervening  appro- 
priators  seems  to  be  Davis  v.  Gate,  //  M.  R.  604;  82 
CaL  26. 

A  Party  May  Use  the  Bed  of  a  Natural  Stream  as 
his  means  of  conducting  water  added  to  it  by  a 
ditch,  without  l>Hn-  considered  as  abandoning  the 
water  by  mingling  it  with  the  original  waters  of  the 
stream. — Butte  Co.  v.  Vaughn,  11  Colo.  143;  4  M.  R. 
Oppenlander  v.  Left  Hand  Co.  18  Colo.  //.'. 

Location  of  Ditch  Right. 

At  the  point  where  water  is  taken  from  the 
stream,  post  notice  as  follows: 

DITCH    N«rrn  i:. 

MIIH.AM*  IMTCH.-  I   claim   1  ."in  inches  of  the  water  of 
this  stream,  to  be  taken  by  ditch  from  this  point  to  claims 


196  DITCHES  AND  WATER. 

on  Wightman'8  Gulch,  in  Summit  Mining  District,  Rio 
(i ramie  County,  for  mining  purposes. 

January  17,  1007.  ALEXANDER  G.  COCHRAN. 

The  posting  of  this  notice  where  local  statutes 
require  no  further  filings,  would,  when  accompanied 
by  collateral  acts  showing  intention  to  follow  up, 
give  a  reasonable  time  to  begin  the  ditch. — Dyke  v. 
Caldwell,  18  P.  216. 

The  ditch  should  be  staked  and  work  commenced 
and  prosecuted  with  reasonable  diligence.  If  tne  no- 
tice be  not  followed  up  within  a  reasonable  time  by 
actual  work  in  carrying  out  the  intended  appropri- 
ation, it  amounts  to  absolutely  nothing. 

Unless  required  by  district  rule  or  statute  the 
existence  of  a  record  could  not  be  insisted  on  as  a 
condition  of  title,  where  the  ditch  is  actually  con- 
structed and  continuously  used.  But  record  is  cus- 
tomary, always  advisable,  and  when  made  becomes 
the  initial  point  in  the  chain  of  recorded  title. 

In  Colorado,  by  Act  of  1903,  R.  S.  §3181,  dupli- 
cate maps  and  statements  are  required  to  be  tiled 
with  the  State  Engineer  within  sixty  days  after  the 
commencement  of  actual  construction,  or  the  be- 
ginning of  the  survey  of  the  ditch.  After  approval 
the  State  Engineer  certifies  the  duplicate  map  and 
statement,  returning  it  to  the  claimant  who  must 
file  it  within  ninety  days  from  the  time  stated  as 
the  date  of  commencement,  with  the  Recorder  of 
the  county  In  which  the  headgate  is  located. 

Dm  ii   sT.\Ti:.Mi:vr. 

KN«»\V    AI.I.    MI:\    UN    Tiiiisi:    r  That   I,   Al( 

<hr  a.  t'nrhntn.  <•!'  St.  Louis,  in  the  State  of  Missouri,  do 
lu'ivi  y  (It  clan-  ami  publish  as  a  legal  notice  to  all  the  world 
that  i  have  a  valid  right  to  the  occupation  and  possession 
of  that  certain  tract  or  parcel  of  land  lying  in  Summit 
Mining  District,  in  the  County  of  Uio  Grande,  State  of 
Colorado,  for  ditch  and  mining  purposes,  and  more  par- 
ticularly described  in  the  map  hereto  attached.  That  l 
have  located  the  MIDLAND  DITCH,  and  do  hereby  make  and 
file,  in  compliance  with  the  laws  of  the  State  of  Colomd", 
this  statement  in  duplicate,  and  that  the  accompanying 
map.  which  shows  the  location  of  said  ditch,  forms  a  part 
of  this  filing  and  is  hereby  made  a  part  thereof. 


DITCHES  AND  WATER.  197 

First.  Tin*  lu-adirate  is  located  at  a  point  on  the 
south  l»:mk  <.f  the  Alamosa  river.  from  which  it  derives  its 
supply  of  water,  whence  the  N.  E.  corner  of  Section  No.  31, 
Township  -i  Kast  of  the  New  Mexico  Principal 

M.-ridian.  lu-ars  N.  -45°  E.  600  feet. 

1  ditch  is  four  feet  deep,  five  feet  wide 

at   the   top  and   four   feet   wide   at   the  bottom;   the  grade  is 
ten  feel  per  l.noo  tVet  and  the  length  is  2%  miles. 

M  nying   capacity   of  said   ditch   is   150 
i  of  'time. 

Fourth.  \Yoik  was  commenced  on  said  ditch  on  the 
17th  day  of  January,  1'.n>7. 

i  claimant  may  take  either  date  of  survey  or  date  of 
actual  «  -oust  ruet  ion  lu-nuii  for  this  paragraph.) 

Fifth.      The  estimated  COSl    of  ditch  is  $3,000. 

A  I  I  :\\M>i:u  G.   COCHRAN. 

QOLOBADO,  County   of   I-'ntmnit:  SB. 

t/  -ran,  being  first  duly  sworn,  deposes 

and   says   that    h«>   is   the  claimant    of   the  wit'hin   named  ditch 
and   \v:it«T  ri-hi  :    that    \i>-  I    the  foregoing  statement 

and  lias  examined  tin-  a.  -company  ini;  map.  and  that  the  same 
are  true  t<»  the  best  of  his  knowledge  and  belief. 

ALEXANDER  G.  COCHRAN. 

Subscribed  and  sworn  to  before  me  this  1st  day  of 
February,  A.  I> 

George  W.  Clelland, 

Notary  Public. 

The  map   a<-<  <>mpanying  the  above  statement  is 
required  to  be  on  white  linen  drawing  paper,  24  by 
36  in<  li»s  in  si/o.  with  a  two  inch  margin  on  the  left 
and  should  show  the  following: 

^t.     The   location   of  the  headgate  by   course   and 
of  th«>  public  survey,  or  if  upon  unsur- 
-.'iii.'  natural  oi-j.-.-t.  so  that  the  same  may  be 
y  located. 

Second.     The    general    course    and    the    name    of    the 
im. 

Third.     Tin*    route   of   the   ditch   by   course   and   dis- 

rth.     The    legal    40    acre    subdivisions    and    other 
•  <1  lands. 

h.     Tin-    ountiship    of   all    lands    crossed    by    the 
ditch  or  canal. 

And  should  also  contain  the  following: 

A;  I  'I  DAVIT  OP  SURVEYOR. 


BTAT1  !:.M....  County  of  J-'ritufiut:  ss. 

/      /      t  -filial  .  being  duly  sworn  on  oath,  deposes  and 
that   he  is  the  engineer   (or  surveyor)   of  the  MIDLAND 


398  DITCHES  AND  WATER. 

DITCH  ;  that  the  survey  of  the  same  and  the  map  thereof 
\v;is  made  by  him  (or  that  such  map  was  made  under  his 
Instruction*),  and  that  such  survey  is  accurately  represented 
upon  this  map ;  that  he  has  read  the  statement  thereon, 
and  that  the  same  is  true  of  his  own  knowledge. 

E.  E.  CHASB. 
Engineer  (or  Surveyor). 

Subscribed   and   sworn    to   before  me  this   1st  day  of 
February,  A.  D.   !'.»<. 7. 

</<;  W.  Clclland, 

Notary  Public. 

When  it  is  impracticable  to  make  a  complete  sur- 
vey and  maps  within  the  sixty  day  period,  temporary 
maps  may  be  filed  with  the  statements,  to  be  sup- 
plemented by  a  detailed  map  when  the  survey  is  com- 
pleted. 

When  local  statutes  do  not  require  other  details 
or  the  filing  of  maps  the  above  statement  would  be  a 
valitl  location  certificate  of  ditch  rights,  by  incorpo- 
rating into  the  statement  a  description  of  the  course 
of  the  ditch,  and  omitting  reference  to  the  map 

How  Conveyed. 

Right  to  water  appropriated  may  be  transferred 
like  other  property.  A  ditch  is  real  estate  and  is 
conveyed  by  deed. — Smith  v.  O'Hara,  1  M.  R.  671;  43 
Cal.  371;  Bradley  v.  Harkness,  26  Cal.  69;  11  M.  R. 
389;  Burnham  v.  Freeman,  11  Colo.  601;  R.  8.  Colo.  § 
869. 

Appurtenance. 

Whether  a  deed  of  land  conveys  the  ditches  and 
water  rights  depends  upon  the  intent  of  the  grantor, 
and  may  be  implied  where  the  use  is  necessary  to  its 
beneficial  enjoyment. — Arnett  v.  Linhart,  21  Colo. 
188;  Gelwicks  v.  Todd.  .!',  Cola.  /.''/.  The  water  right 
goes  with  the  sale  of  a  mill  site. — N.  A.  Co.  v.  Adams, 
104  F.  404.  The  ditch  was  held  no  appurtenance  in 
Quirk  v.  Falk.  47  Cal.  453;  2  M.  R.  19,  and  Oinocchio 
v.  Amador  Co.  67  Cal.  493. 

It  has  become  a  rule  of  property  in  Montana 
that  "a  water  right  is  appurtenant  to  the  land  upon 


DITCHES  AND  WATER.  199 

which  it  is  used."— Leggat  v.  Carroll,  76  P.  806.  A 
patent  does  not  divest  ditch "  rights. — Dodge  v.  Mar- 
.  7  Or.  456;  1  M.  R.  63.  The  right  granted  under 
the  A.  C.  1866  was  not  confined  to  ditches  then  in  ex- 
istence.— Jacob  v.  Lorenz,  33  P.  119. 

A  Ditch  May  be  Abandoned  Without  Necessarily 
abandoning  the  water  which  it  carried. — New  Mercer 
Co.  v.  Armstrong,  21  Colo.  351.  Non-user  of  ditch 
does  not  necessarily  amount  to  abandonment. — Welch 
v.  Garrett,  51  P.  405. 

Buyer  Must  Take  Notice  of. 

A  ditch  is  a  physical  and  visible  monument,  and 
doubtless  the  grantee  of  land  crossed  by  a  ditch  buys 
\\ith  presumptive  notice  of  its  existence. — Oregon 
Co.  v.  Trullenger,  S-Or.  /;  4  M  /,*.  .  ;;  .  L<unpman  v. 
Milks.  .?/  X.  V.  o05. 

Relation. 

When   a   ditch   is   made   for  the  appropriation  of 

water,  the  right  relates  back  to  the  commencement 

of  the  work  on  the  ditch,  if  the  same  be  completed 

within  a  reasonable  time. — Maeris  v.  Bicknell,  7  Cal. 

I  M.  If.  601;  Irwin  v.  Strait,  18  Nev.  436. 

Hut  if  the  ditch  be  not  completed  with  due  dili- 
gence, the  rUht  only  accrues  from  the  time  the  water 
is  actually  appropriated. — Ophir  Co.  v.  Carpenter.  ', 
Nev.  534;  4  M.  R.  640.  Facts  stated  and  held  to 
amount  to  due  diligence. — Oviatt  v.  Big  Four  Co.  i;~, 
P.  811;  Sand  Point  Co.  v.  Pan  Handle  Co.  83  P.  347. 
And  the  ditch  has  a  right  of  way  over  claims  located 
across  its  line  after  work  commenced,  but  before  com- 
pletion.— Miocene  D.  Co.  v.  Jacobsen,  146  F.  680. 

Until  claimant  of  water  is  in  a  position  to  use 
the  water  he  cannot  claim  damages  against  a  party 
diverting  or  using  it. — Miles  v.  Butte  Co.  (Mont.)  79 
P.  549. 

Surplus  Water. 

Ditch  owner  must  return  surplus. — Stanford  v. 
7-v/f.  77  cul.  _'/.'».  After  user  by  placer  miner  it  must 


200  DITCHES  AND  WATER. 

be  let  go  to  claims  below. — Alder  Gulch  Co.  v.  Hayes, 
9  P.  581.  Waste  water  defined. — Byrne  v.  Grafts,  73 
Gal.  641. 

The  flowage  of  water  from  a  tunnel  is  a  subject 
for  appropriation,  and,  where  a  party  appropriated 
water  from  a  tunnel,  which  was  afterwards  under  cut 
by  a  lower  tunnel,  the  water  of  which  it  also  appro- 
priated, its  right,  by  relation,  went  back  to  the 
original  appropriation. — Ripley  v.  Park  Center  Co.  90 
P.  75.  But  such  appropriation  does  not  impose  any 
obligation  on  the  tunnel  owner. — Cardelli  v.  Corn- 
stock  Co.  66  P.  950:  the  same  as  to  water  from  the 
sluice  of  a  placer  claim  and  tapped  on  the  owner's 
ground  by  his  license. — Fairplay  Go.  v.  Westoii 
P.  160. 

But  the  subsequent  appropriator  who  makes  his 
diversion,  under  the  belief  that  the  water  appropri- 
ated by  the  senior  appropriator  will  continue  to  be 
used  as  it  was  until  the  time  of  the  subsequent 
appropriation,  acquires  a  vested  right  to  insist  on  such 
conditions. — Baer  Bros.  Co.  v.  Wilson  (Colo.),  88  P. 
265. 

Water  flowing  from  an  abandoned  artesian  well 
on  the  public  domain  is  subject  to  appropriation. — 
Wolfskin  v.  Smith,  89  P.  1001. 

Parol  License  to  Construct. 

Where  a  ditch  is  constructed  on  government  land 
or  over  the  land  of  persons  who  give  their  consent, 
no  condemnation  proceedings  are  necessary;  the  ditch 
once  constructed  becomes  a  lawful  easement;  or  the 
consent  may  be  treated  as  giving  title  by  estoppel. — 
Yunker  v.  Nichols,  8  M.  R.  6Sf;  1  Colo.  5St  With  or 
without  the  aid  of  this  or  like  decisions  it  remains 
clear  that  a  ditch  over  the  public  land  requires  the 
consent  of  no  person,  the  federal  consent  being  given 
by  law,  that  verbal  consent  is  commonly  taken  as 
sufficient  over  possessory  claims  and  that  when  by 
its  construction  it  becomes  a  fixed  easement,  even 
the  patented  title  recognizes  the  validity  of  the  title 
to  such  ditch. — Tynon  v.  Despain,  //3  P.  1039;  Stoner 
v.  Zucker,  83  P.  808. 


DITCHES  AND  WATER.  L'"l 

Condemnation  Where  Necessary. 

Where  it  is  to  be  built  across  claims  or  other 
lands  whose  owners  refuse  consent,  condemnation 
proceedings  are  necessary  under  the  Eminent  Do- 
main Acts,  notwithstanding  the  right  of  way  granted 
to  ditches  by  the  Act  of  1866.  (R.  S.  2339.)  A  ditch, 
when  carried  across  mining  claims  already  located, 
must  recognize  their  prior  possessory  rights  and  pay 
damages  as  in  other  cases  of  condemnation. — Tit- 
comb  v.  Kirk,  51  Cal.  288;  5  M.  R.  10;  Jennison  v. 
Kirk,  98  U.  8.  453;  4  M.  R.  504;  Noteware  v.  Sterns. 
1  Mont.  311;  4  M.  R.  650.  It  seems  not  necessary  that 
the  ditch  owners  should  incorporate  to  condemn  a 
right  of.  way  for  ditches,  though  incorporation  In 
such  cases  is  usual  and  is  always  assumed  to  be  nec- 
essary in  the  absence  of  constitutional  provisions 
dispensing  with  it  such  as  §  7,  Art.  XVI,  Colorado 
Constitution. 

The  flooding  of  land  by  a  reservoir  for  supply  of 
power  to  mines  and  smelters  and  for  irrigation  is  a 
public  use. — Helena  Power  Co.  v.  Spratt  (Mont.),  88 
P.  773. 

Where  a  ditch  was  constructed  without  objection 
from  the  owners  of  the  mining  claims  it  crossed,  but 
without  condemnation  proceedings,  an  attempt  by 
the  mine  owners  to  destroy  the  ditch  will  be  enjoined. 
The  mine  claimants  are  entitled  to  damages  only. — 
Miocene  D.  Co.  v.  Jacobsen,  146  F.  680. 

Irrigation  Ditches  are  granted  the  same  rights  of 
way  and  the  same  right  to  appropriate  water  as 
ditches  for  mining  purposes  under  §  2339  above 
printed.  Neither  has  any  class  priority  over  the 
other. — Union  Co.  v.  Dangberg,  81  F.  73.  The  first 
in  time  is  first  in  right.  They  may  in  general  be 
located  and  recorded  in  the  same  form  as  a  mining 
ditch,  except  when  otherwise  regulated  by  statute. 

The  Colorado  Act  applies  to  reservoirs  and 
ditches  for  any  beneficial  use  and  for  the  enlarging 
of  the  same.  The  form  on  page  196  is  sufficient  for 
an  Irrigating  ditch  by  changing  the  purpose  of  the 
use. 


202        RIGHT  OF  WAY  AND  OTHER  EASEMENTS. 

Contract  to  enlarge  a  ditch  so  that  it  would  be 
filled  from  a  certain  river  construed  to  mean  to 
make  a  ditch  of  a  certain  capacity  and  not  a  guar- 
anty that  the  water  would  be  there  to  fill  it. — Flick 
v.  Hdhris  Peak  Co.  66  P.  453. 

A  party  contracting  to  supply  water  to  a  placer 
mine  must  furnish  water  fit  for  the  purpose,  and  if 
the  water  furnished  has  come  from  a  placer  above, 
the  duty  is  upon  him  to  provide  the  necessary  reser- 
voirs to  settle  it. — Gold  Ridge  Co.  v.  TaUmadge 
(Greg.),  74  P.  825. 

Using  such  water  as  furnished  was  no  waiver  of 
damages  for  its  defects. — Id. 

For  form  of  incorporation  of  ditch  company  see 
p.  323. 


RIGHT   OF  WAY   AND   OTHER   EASEMENTS. 


State  Power  to  Regulate  Easements. 

]{.    S.    Bee.    2888.      Ai    R    «•.. million    «»f   salt-,    in    the   ab- 

s»'iir«'  of  iH'crssary  l«'i;islat  i»n  by  <  'impress.  th«>  local  legis- 
lature of  any  Sjat •  Territory  m.-iy  provioV  rub's  for 

working  iniin's.  involving  •  •as.-nirnis.  drainage,  and  otln-r 
necessary  means  to  tlicir  compiler  development;  and  those 
conditions  shall  be  fully  expivss.-d  in  the  patent. — K,  , 

i.  c.  .1  HI  it  mt  / 
Highways. 

K.  S  Bee.  -177  The  ri-ln  of  way  for  the  ronstruc- 
lion  of  hijrh\va\s  i-ver  public  lands,  not.  reserved  for  public 
us.  s.  is  hereby  granted.  Sec.  *.  \.  V.  -fitly  26,  1866. 

By  the  terms  of  the  above  section  2477,  roads 
;ind  trails  may  be  established  without  any  license 
or  formality  over  the  public  domain. — Hobart  v. 
Ford,  15  M.  R.  836;  <',  .\vr.  77. 

By  a  very  early  statute  in  Colorado  all  claims 
are  made  subject  to  the  right  of  way  for  hauling 
quartz  (R.  S.  §  t£Jt£),  and  by  another  section 
(4216)  parol  license  to  build  a  road  is  valid  without 
deed.  Where  such  statutes  do  not  exist  at  the  time 
when  a  location  is  made  the  estate  of  the  miner  in 
his  claim  is  exclusive  and  a  road  can  not  be, laid 
across  it,  without  his  acquiescence,  except  by  con- 
demnation under  the  Eminent  Domain  Acts  with 


RIGHT  OF  WAY  AND  OTHER  EASEMENTS.        203 

<  compensation  in  damages. — Titcomb  v.  Kirk,  5  M.  R. 
10;  31  raf.  ?8S. 

Except  where  granted  by  the  above  section,  2477, 
or  allowed  by  state  statute  enacted  under  the  per- 
mission of  section  2338  (which  has  a  very  limited 
scope)  the  title  to  an  easement  must  be  created  in- 
deed or  other  writing.  That  is  to  say,  it  is  within 
the  Statute  of  Frauds.  It  is  true  an  easement  may 
sometimes  be  sustained  by  estoppel  or  as  an  exe- 
cuted license,  but  if  a  good  title  is  sought  at  the  out- 
start  it  should  be  secured  in  writing  in  every  in- 
stance.— Highland  Boy  Co.  v.  Stickley,  1J6  F. 

Where  a  claim  over  which  an  easement  exists  is 

abandoned  the  rights  of  the  holder  of  the  easement 

are  paramount  to  those  of  a  relocator  of  the  same 

land.— Banner   r.   l!in  Orande  fl.  R.  Co.  72  P.  1065; 

mne  Co.  v.  Maier,  66  P.  863. 

A  Mineral  Patent  Does  Not  Divest  a  Valid  high- 
way already  on  the  ground  when  patent  was  applied 
for.  And  when  construed  in  connection  with  the  Act 
of  Congress  and  the  power  of  the  State  to  regulate 
easements  it  would  seem  that  the  patent  would  be 
subject  to  any  valid  subsisting  easement  affecting 
the  .mound  prior  to  the  application.  Such  an  ease- 
in,  -in  saves  itself  and  needs  not  to  be  protected  by 
filing  an  adverse  claim. — Rockwell  v.  Graham,  9  Colo. 
36;  I",  M.  if.  M>9;  /ocofc  v.  inn/.  ',',  P.  243. 

Annual  Labor. 

The  building  of  trails  or  roads  for  the  benefit 
of  a  claim  counts  as  annual  labor  or  towards  mak- 
ing up  the  $500  improvements  required  before  pat- 
enting. »sftv  pcifjr  I"''. 

One  Tenant  in  Common  can  not  by  his  general 
deed  or  license  create  an  easement  over  the  common 
claim  in  favor  of  a  stranger. — Pfeiffer  v.  University. 
?/  cal.  i~tH.  Nor  lias  the  general  manager  of  a  mine, 
power  to  grant  an  easement. — Butte  Co.  v.  Montana 
Co.  55  Pat.  lit. 


204       RIGHT  OF  WAY  AND  OTHER  EASEMENTS. 

A  co-tenant  has  no  right  to  use  a  drift  on  the 
vein  as  a  tunnel  to  convey  ore  from  outside  property 
owned  by  himself  alone. — Laesch  v.  Morton,  87  P. 
1081.  Nor  to  maintain  a  pipe  line  across  the  com- 
mon ground  for  purpose  other  than  the  mining  of  it. 
— Pioneer  Co.  v.  Shamblin,  37  So.  391. 

Tramways,  Canals,  Electric  Power  Lines. 

By  various  Acts  of  Congress  the  right  of  way 
through  public  lands  is  given  to  tramways,  canals, 
ditches,  reservoirs  and  lines  for  distribution  of  elec- 
tric power.  Reference  to  the  several  Acts  and  the 
regulations  of  the  Secretary  of  the  Interior  promul- 
gated thereunder  will  be  found  in  31  L.  D.  13;  83 
Id.  451,  503;  especially  with  regard  to  the  permit 
required  where  the  line  crosses  a  government  reser- 
vation. See  also  IS  L.  D.  J68 ;  27  L.  D.  495. 

By  A.  C.  May  21,  1896,  29  St.  L.  127,  oil  pitfe 
lines  in  Colorado  and  Wyoming  are  given  free  right 
of  way  over  the  public  land. 

Eminent  Domain. 

Acts  to  condemn  ditches  are  found  in  all  the 
arid  States. 

By  Colorado  Act  of  1907  an  aerial  tramway,  or 
pipe  line,  is  allowed  to  condemn  its  right  of  way. 
The  validity  of  such  statutes  depends  upon  whether 
mining  is  a  public  use;  for,  if  not  a  public  use,  the 
statute  is  void.  The  tendency  of  the  decisions  is  to 
sustain  them.— Clark  v.  Nash,  198  U.  S.  361. 

It  has  been  held  a  public  use  in  Nevada. — Dayton 
M.  Co.  v.  Seawell,  5  M.  R.  424;  Byrnes  v.  Douglass, 
19  M.  R.  96;  83  F.  45.  And  in  Utah,  Highland  Boy 
Co.  v.  Stickley,  78  P.  296.  And  in  Montana,  Helena 
Power  Co.  v.  Spratt,  88  P.  773. 

But  otherwise  in  California;  Cons.  Channel  Co. 
v.  C.  P.  R.  Co.  5  M.  R.  438:  Amador  M.  Co.  v.  De- 
ivitt,  73  Cal.  482. 

A  distinction  has  been  made  where  the  easement 
is  intended  only  for  the  private  benefit  of  the  con- 
demnor  and  where  intended  to  supply  the  public  gen- 
erally, being  allowed  in  the  latter  instance  and 


DUMP.  205 

denied   in   the  former. — Great   Western   Co.  v.  Haw- 
Icins,  66  N.  E.  165;  Miocene  D.  Co.  v.  Lyng,  138  F. 

••'/;. 

Provision  for  condemnation  by  electric  power 
companies  and  by  mines  seeking  to  connect  with 
railroads  is  found  in  the  Colorado  R.  S.  Sees.  2459, 
2460.  Any  mine  owner  may  condemn  land  to  con- 
nect with  a  railroad.  Sec.  2464. 

Right  of  Way  to  Tunnel. 
See  Ti  \MI.  SITE. 


DUMP. 


The  Right  to  Dump  is  but  little  if  at  all  affected 
by  statutory  regulations,  and  the  right  to  dump, 

of  necessity  or  by  custom,  across  lower  claims, 
has  never  been  brought  under  the  adjudication  of 
the  Court  of  last  resort  in  any  of  the  mining  States, 
to  the  writer's  knowledge;  but  in  the  case  of  Equator 
Co.  v.  Marshall  Co.  U.  8.  C.  Ct.  Colorado,  an  action 
brought  to  restrain  the  dumping  across  a  claim 
lying  below  on  the  mountain  slope,  it  was  held,  as 
of  course,  that  it  was  no  case  for  injunction,  unless 
where  work  was  being  prevented,  shafts  filled,  life 
endangered  or  other  gross  and  continuing  injury, 
and  the  remedy,  if  any,  was  by  action  at  law  for 
damages. 

In  a  later  suit  in  the  same  Court  between  the 
same  parties  it  was  held  that  when  continuous 
dumping  had  been  carried  on  by  owners  and  lessees, 
without  proof  or  attempt  at  proof,  as  to  the  injury 
clone  by  each  party,  that  only  nominal  damages 
•  •oiild  be  recovered  against  an  owner,  and  that  the 
owners  were  not  responsible  for  the  injuries  done 
by  their  lessees;  and  there  being  no  proof  that  the 
defendant,  one  of  the  owners,  had  ever  taken  an 
active  part  in  the  management  of  the  mine,  the  jury 
found  for  the  defendant. — See  also  Little  Schuylkill 
Co.  v.  Richards,  10  M.  R.  661;  57  Pa.  142. 


206  DUMP. 

In  the  case  of  continuous  and  indiscriminate 
dumping  over  lower  claims  it  may,  if  not  in  the 
meanwhile  regulated  by  statute,  be  finally  recognized 
as  a  controlling  custom  and  so  fixed  as  a  permanent 
easement  on  the  lower  claims. 

In  the  case  of  careless  or  wanton  injury  to  im- 
provements the  upper  claim  is,  of  course,  liable;  but 
the  right  to  dump  over  unimproved  and  valueless 
surface  ground  is  doubtless  such  an  easement  as  may 
be  prescribed  by  state  statute  under  the  permission 
of  R.  S.  §  2338,  ante  p.  202,  or  allowed  by  district 
rule. 

The  owner  of  a  gypsum  bed  cannot  make  his 
neighbors'  land  a  convenience  to  dump  his  waste  on. 
—White  v.  Lansing,  103  N.  Y.  8.  1040;  and  having 
covered  up  an  acre  of  such  ground  defendant  was 
decreed  to  remove  it  or  pay  damages  at  plaintiff's 
election.  But  the  damages  in  cases  when  the  cost  of 
removal  would  exceed  the  value  of  the  land  cannot 
exceed  the  amount  of  such  value. — Harvey  v.  Sides  M. 
Co.  1  Nev.  539. 

A  Dump  Is  Real  Estate  and  passes  to  the  grantee 
without  special  mention.  But  a  contract  to  sell  the 
ore  found  in  it  need  not  necessarily  be  by  deed. — 
Smart  v.  Jones,  15  Com.  Bench,  .\.  N.  7/7.  Dump 
deposited  on  the  land  of  another  and  allowed  to  re- 
main indefinitely  becomes  parcel  of  the  land. — La- 
custrine Co.  v.  Lake  Guano  Co.  82  N.  Y.  476;  Eric  in'* 
App.  12  Atl.  140;  16  M.  R.  91.  A  deposit  of  tailing 
becomes  an  accretion  to  the  land. — Rogers  v. 
Cooney,  14  M.  R.  85:  7  Nev.  213. 

Under  a  mining  lease  in  general  terms  the  les- 
see has  the  right  to  work  over  the  dump,  but  the 
wording  of  the  lease  may  be  such  as  to  exclude 
dumps  by  construction. — Boileau  v.  Heatli,  L.  /'. 
(1898),  2  Ch.  301;  Oenett  v.  Delaware  Co.  43  N.  Y. 
Sup.  589;  25  N.  E.  !>.'.'. 

The  right  to  dump  may  be  lost  by  allowing  ad- 
verse possession  of  the  ground  for  the  statutory 
period.— McLaughUn  v.  Del  Re,  16  P.  881.  Eject- 


MINERAL  LA M  >.  207 

ment  lies  to  recover  ground  used  for  tailings. — 
Camiibt'll  r.  N//n-r  Bow  Co.  •'/.''  F.  /7. 

The  lessee  has.  no  property  in  the  dump  after 
his  term  has  expired;  nor,  during  term,  to  minerals 
not  contemplated  in  his  lease. — Erwin's  App.  16  M.  R. 
'.(1 :  1  >  AtL  1',!);  Doster  v.  FriedensviUe  Co.  21  Atl.  251. 

Construction  of  contract  to  work  dump. — Fos- 
ter v.  Li/ >,  Co.  96  .V.  W.  111. 

Appurtenance. 

It  has  been  held  that  the  grant  of  a  tunnel 
right  carries  with  it  as  an  appurtenance  the  right 
to  dump  on  the  grantor's  land  at  the  mouth  of  the 
tunnel.— Scheel  v.  Alhambra  Co.  19  F.  821. 


MINERAL  LAND. 

Contests  With  Non-Mineral  Claims. 

The  question:  What  is  mineral  land?  arises  in 
contests  between  mineral  and  agricultural  claimants, 
.'.  t»i»n  mill  site  and  lode  claimants,  in  timber  cut- 
ting cases,  indirectly  in  contests  as  to  the  exception 
oi  known  lodes  from  placers  and  in  other  instances. 
Where  it  is  the  duty  of  the  land  department  to  de- 
cide this  point  before  they  issue  patent  their  de- 
cision is  final. — Gale  v.  Best,  11  M.  R.  186;  Traaphagen 
v.  A' //•/.-.  77  Pac.  58;  Patterson  v.  Ogden,  Uf  P.  ',  / .;  ; 
94  L.  l>.  }"/. 

Evidence  that  land  in  the  vicinity  is  mineral  is 
admissible  as  proof  of  the  mineral  character  of  the 
land  in  controversy. — U.  8.  v.  Rossi,  188  F.  380. 

On  the  other  hand  it  is  held  that  a  man  may 
enter  land  as  agricultural  where  no  oil  has  been 
actually  discovered  on  the  tract  although  oil  is  found 
in  the  neighborhood  and  the  entry  man  selected  it 
for  its  supposed  mineral  values. — Olive  Co.  v.  Olm- 
stead,  20  M.  R.  100;  103  F.  568;  Bay  v.  Oklahoma  Co. 
13  P. 


208  PLACERS. 

The  subsequent  discovery  of  mineral  after  a 
vested  right  in  a  non-mineral  location  does  not  in- 
validate the  location. — Cleary  v.  SkifflcH,  21  M.  It. 
284;  65  P.  59.  Discovery  of  coal  after  entry  will 
not  defeat  the  issue  of  his  patent  to  a  homestead 
claimant.— 2 1  L.  D.  92;  Colo.  Co.  v.  U.  8.  123  U.  8. 
308.  The  test  in  agricultural  contests  is  one  of  com- 
parative values. — Hunt  v.  Steese,  15  Cal  a>l:  11  P. 
920.  A  discovery  justifying  further  exploration  makes 
the  land  mineral. — 19  L.  D.  //5o. 

Discovery  of  colors  and  fairly  good  prospects  is 
not  enough  to  establish  the  mineral  character  of  land 
as  against  a  prior  homestead  entry. — Steele  v.  Tauann 
Mines,  148  F.  618.  . 

The  ruling  of  the  Land  Department  in  a  con- 
test that  the  land  is  non-mineral,  in  the  absence  of 
fraud  or  mistake,  is  binding  on  the  Courts  and  not 
subject  to  collateral  attack. — Old  Dominion  Co.  v. 
Haverly,  90  P.  S3S;  Le  Feme  v.  Amonson,  81  P.  11. 
The  fraud  must  be  extrinsic  to  the  issue  passed  upon 
by  the  Department. — Craig  v.  Roberts,  ,'>..'  /' 

The  mineral  value  of  the  land,  to  defeat  an 
agricultural  entry,  must  be  substantiaj.  Abandoned 
works  are  not  enough. — U.  8.  v.  Blackburn,  48  P.  904. 
The  panning  of  colors  on  surface  held  on  the  facts 
not  enough  to  defeat  a  prior  homestead  entry. — 
Steele  v.  Tanana  Mines,  148  F.  618. 


PLACERS. 


Open  to  Location  and  Patent. 

R.  S.  Sec.  2329. — Claims  usually  called  "placers,"  in- 
cluding all  forms  of  deposit,  excepting  veins  of  quartz,  or 
other  rock  in  place,  shall  be  subject  to  entry  and  patent, 
under  like  circumstances  and  conditions,  and  upon  similar 
proceedings,  as  are  provided  for  vein  or  lode  claims ;  but 
where  the  lands  have  been  previously  surveyed  by  the  United 
Snitcs.  the  entry  in  its  exterior  limits  shall  conform  to  tho 
legal  subdivisions  of  the  public  lands. — Sec.  12,  July  9,  1870. 


PLACERS.  209 

Size  of  Claim — Legal  Subdivisions. 

K.  i    sul. divisions    of    forty    acres 

may  \  ided    into    ten  acre    tracts;    and    two    or    more 

-•  ciations  of  persons,  having  contiguous  claims 

of    any    si/.-.    although    such    claims    may    be    less    than    ten 

].    may    mue   .joint    entry    thereof;    but    no   location 

r  claim,  made  after  the  ninth  day  of  July,  eighteen 

hundred    ami    seventy,    shall    exceed    one    hundred    and    - 

acres    lor   any    one   person    ..i-   assoriation   of   persons,   which 

loe.-ition    shall    conform    to    the    l"n:  -    surveys;    and 

nothing  in   this  se«-iion   contained  shall  defeat  or  impair  any 

hona  !i<le    pre  emptioii   <.r   liomestead   claim    upon   agricultural 

lands,    or    anthori/e    the    sale    <.f    the    improvements    of    any 

•  tiler  to  any  purchaser. — Id. 

Twenty  Acres  to  One  Locator. 

l:     s    See.  2331. — Where  placer-claims  are  upon  sur- 
I    lands,  and  conform    to   le^al  subdivisions,   no  further 
survey    or    plat    shall     be    required,    and    all    placer-mining 
claims  lo<  rhe  tenth  day  of  May,  eighteen  nun 

and    |  o    shall    conform    M    near    lis    practicable    with 

the    I  ni!>'     -  :u    of    public  land   surveys,   and   the 

rectangular  sub-divisions  of  such  surveys,  and  no  such  loca- 
tion shall  include  more  than  twenty  acres  for  each  Indi- 
vidual claimant  :  Hit  where  placer-claims  can  not  be  con- 
formed to  legal  subdivisions,  ntirvey  and  plat  shall  be  made 
as  on  unsurveyed  lands;  and  where  by  the  segregation  of 
division  a  quantity  of  agricul- 
tural laii'i  remains,  such  fractional 
portion  of  agricultural  land  may  he  entered  by  any  party 
qualified  by  Taw,  for  homestead  or  pre-emption  purposes. — 
/",  May  10,  1872. 


mlding  Stone  Act. 

'I'h.-. i  any  person  authori/ed  to  enter  lands  under  the 
mining  laws  01  ih.-  I  niied  states  may  enter  lands  that  are 
chietly  valuable  f..r  building  stone  under  the  provisions  of 
the  law  in  relation  to  plaeer  mineral  claims:  Proviilnl. 
That  lands  reserved  for  the  benefit  of  the  public  schools  or 
donated  to  an\  all  not  be  subject  to  entry  under 

this  act.  '  /    j,  1892.— 27  Stat.  L.  Stf. 

Location  and  Certificate — Notice  and  Stakes. 

K.    s.    <'olo.    Sec.    4205. — The   discoverer   of   a   placer 

claim   shall,   within   thirty   days  from  the  date  of  discovery. 

l   claim   in  the  office  of  the  recorder  of  the  county 

in    which   said   claim    is   situated,   by   a   location    certificate, 

which   shall    contain:      HIM.    the  name  of  the  claim,   desig- 

natii :-  placer    claim  :    second,    the   name   of   the   lo- 

:    third,    the   date   of   location;   fourth,   the   number   ot 

.limed;  and  fifth,  a  description  of  the  claim. 


210  PLACERS. 

l».v    such    reference   to   natural    objects   or   permanent   monu- 
ments as  shall  identify  the  claim. 

Before  filing  such  location  certificate  the  discoverer 
shall  locate  his  claim  :  First,  by  posting  upon  such  claim 
a  plain  sign  or  MM  in-,  containing  the  name  of  the  claim, 
the  name  of  the  locator,  the  date  of  discovery,  and  the  num- 
ber of  acres  or  feet  claimed;  second,  by  marking  the  sur- 
face boundaries  with  substantial  posts,  and  sunk  into  the 
ground,  to-wit  :  om-  at  each  Miigb>  of  the  claim. — March  12, 
1879. 

Legislation  Concerning  Placers. 

Placer  claims  were  not  covered  by  the  original 
A.  C.  of  1866. 

The  Act  of  1870  brought  them  within  Congres- 
sional recognition  and  made  them  open  to  patent. 

They  have  been  at  all  times  regulated  as  to  size, 
labor,  mode  of  location,  etc.,  by  the  district  rules  to 
a  much  greater  extent  than  lode  claims. 

Placer  Defined. 

As  commonly  and  properly  understood  a  placer 
claim  means  a  location  in  which  gold  is  found  loose 
in  sand  or  gravel  and  not  in  the  vein  or  in  place: 
it  includes  gulch  claims,  old  channels,  cement  and 
drift  diggings. 

Mining  Claims  Divided  Into  Lodes  and  Placers. 
But  the  U.  S.  Mining  Acts  make  an  arbitrary 
division  of  all  minerals  into  two  classes,  to  wit: 
lodes  and  placers.  All  deposits  of  (metallic)  min- 
erals in  place  are  called,  when  located,  lode  claims, 
and  all  deposits  of  other  minerals  in  place  or  not  in 
place,  are  placers. — Gregory  v.  Pershbaker,  15  M.  /.'. 
602;  73  Gal.  109. 

Distinction  Between  Lode  and  Placer. 

In  Webb  v.  American  AsphaUum  Co.  151  F.  £04, 
a  placer  location  had  been  .made  on  a  string  shaped 
deposit  of  asphalt.  Later  lode  locations  were  made 
over  it.  The  issue  turned  on  whether  it  was  lode  or 
placer  ground.  The  Court  held  that  the  issue  was 
determined  by  the  form  of  the  deposit  and  the  forma- 
tion being  fissure  like  and  in  place  it?  was  a  lode,  dis- 


PLACERS.  I'll 

carding  entirely  the  non-metallic  character  of  the 
mineral.  In  U.  8.  v.  Iron  8.  Co.  128  U.  8.  619,  the 
Supreme  Court  had  said:  "By  'veins  or  lodes,'  as 
here  used,  are  meant  lines  or  aggregations  of  metal 
embedded  in  quartz  or  other  rock  in  place.  The 
terms  are  found  together  in  the  statutes,  and  both 
are  intended  to  indicate  the  presence  of  metal  in 
rock."  And  in  St.  Louis  Co.  v.  Kemp.  104  U.  8.  <>;.'>. 
occurs  this  clause:  "A  mining  claim  is  a  parcel  of 
land  containing  precious  metal  in  its  soil  or  rock." 
But  in  neither  of  these  last  two  cases  was  the  point 
directly  -involved  and  the  use  of  the  word  "metal" 
is  therefore  not  of  binding  force.  The  Asphaltum  Co. 
case  is  therefore  thus  far  the  authoritative  decision 
on  this  important  question  and  we  so  print  it  with 
the  qualification  that  it  remains  for  the  ultimate  ad- 
judication of  the  Federal  Supreme  Court  before  we 
can  concede  that  it  is  a  correct  exposition  of  the 
law.  The  latest  ruling  of  the  Land  Department  co- 
incides with  the  holding  in  the  Asphaltum  <'<>.  cose, 
85  L.  D.  652. 

Other  Non-Metalliferous  Deposits. 

Discarding  the  rare  cases  instanced  in  the  fore- 
going paragraph  where  non-metallic  but  valuable 
mineral  substances  are  found  in  fissure  or  lode  like 
formation,  the  uniform  practice  is  to  locate  them  as 
placers  and  the  Department  has  so  ruled  as  to  many 
specific  minerals. 

Deposits  of  alum,  asphaltum,  soda  and  sulphur 
may  be  patented  as  placer  ground. — Circi //<?/•  /  L.  D. 
572,  Rev.  Ed.  561;  also  kaolin  or  fire  clay,  1  L.  1>. 
579,  Rev.  Ed.  565;  17  L.  D.  550;  borax  beds,  2  Id.  "707; 
auriferous  cement,  marble,  mica  and  slate,  25  Id.  354; 
35  Id.  652;  gypsum,  Id.  29;  Id.  181;  limestone,  17  L.  D. 
- 1 :  phosphate,  18  Id.  58;  26  Id.  600. 

Oil  Lands. 

Ever  since  the  passage  of  the  placer  mining 
Act,  lands  valuable  for  deposits  of  petroleum  were 
considered  as  open  to  location  and  patent  as  placer 


212  PLACERS. 

claims  and  as  such,  records  were  made  followed  by 
entries  and  patents  as  a  matter  of  ordinary  course. 
—4  L.  D.  60,  284;  16  Id.  111.  And  such  action  of 
the  Land  Office  was  followed  by  the  courts  in  deal- 
ing with  oil  located  or  patented  as  placer  ground 
without  question  of  its  regularity. — Gird  v.  Califor- 
nia Oil  Co.  60  F.  532;  Van  Horn  v.  State,  40  P. 

After  this  unbroken  procedure  of  more  than 
twenty  years,  the  Land  Office  in  1896  (Union  oil 
Co.  23  L.  D.  222)  abruptly  held  that  oil  was  not  a 
mineral  and  oil  lands  therefore  not  subject  to  entry. 
This  was  immediately  followed  by  an  Act"  of  Con- 
gress making  such  lands  in  terms  patentable  as  plac- 
ers.—29  St.  L.  526,  post  p.  51>i.  The  ruling  itself 
which  induced  the  confusion  was  later  reversed  by 
the  Secretary  of  the  Interior. — 25L.D.351.  The  ju- 
dicial rulings  that  oil  is  a  mineral  have  been  uui 
form.— Thompson  v.  JVo&te,  11  M.  R.  137;  Gill  v. 
Weston,  110  Pa.  811  barring  the  anomalous  case  of 
Dunham  v.  Kirkpatrick,  101  Pa.  36.  They  are  lo- 
cated and  held  like  any  other  class  of  placers. — 
Wolfskill  v.  Smith,  89  P.  1001. 

Salines  were  the  subject  of  congressional  legisla- 
tion for  many  years  prior  to  the  Mining  Acts  of 
1866-72.  Under  those  Acts  they  were  still  treated 
as  neither  lode  nor  placer  but  open  to  entry  ir 
special  statutes  until  January  31,  1901,  when  they 
were  declared  to  be  placer  ground. — 81  St.  I..  r,~*. 

Quarries — Building  Stone. 

Land  "chiefly  valuable  for  building  stone"  may 
be  located  and  patented  as  a  placer  claim.  A.  C. 
Aug.  4,  1892,  ante  p.  209.  If  such  stone  is  found  on 
unsurveyed  land  this  is  the  only  procedure  to  secure 
title.  Under  the  Department  rulings  any  stone  of 
special  commercial  value  is  held  to  be  placer  ground. 
—15  L.  D.  310;  16  Id.  508. 

Stone  Land  cannot  be  located  or  patented  as  a 
lode  claim.— 23  L.  D.  353,  395;  Wheeler  v.  Smith,  32 
P.  784. 


PLACERS.  213 

Stone — Timber. 

But  under  the  Timber  and  Stone  Acts  of  1878 
and  1892  if  on  a  surveyed  section  land  is  found 
which  is  "valuable  chiefly  for  stone"  it  may  be  filed 
upon  and  title  obtained  by  procedure  much  more  ex- 
peditious and  simpler  than  by  locating  it  as  a  placer 
and  with  no  necessity  of  annual  labor  or  $500  ex- 
penditure. 

The  other  principle  prerequisites  are  that  the 
land  do  not  contain  "valuable  deposits  of  gold,  sil- 
ver, cinnabar,  copper  or  coal"  that  it  is  "unlit  for 
(  ultivation,"  "uninhabited"  and  contains  no  hostile 
improvements. 

The  applicant  makes  no  local  staking  or  record 
but  applies  to  the  Land  Office  direct,  to  purchase, 
by  filing  sworn  statement  that  the  land  and  the  ap- 
plicant come  within  the  terms  of  the  Act.  Sixty 
days  publication  is  then  made,  followed  by  proof  by 
two  witnesses  of  the  character  of  the  land;  where- 
upon the  applicant  if  no  protest  has  been  filed  en- 
ters and  pays  for  his  160  acres  at  $2.50  per  acre. 

Exactly  the  same  form  and  procedure  applies 
to  land  "chiefly  valuable  for  timber." 

The  Acts  are  printed  on  p.  521  and  blanks  and 
instructions  for  such  entries  are  furnished  on  re- 
quest by  any  local  Land  Office. 

Location  Without  Specific  Mineral  Value. 

Some  of  the  decisions  of  the  department  aided 
by  the  Act  of  1892  allowing  quarries  to  be  entered 
were  sufficiently  loose  to  allow  a  claim  to  be  laid 
upon  any  ground;  for  either  what  can  be  called 
building  stone,  or  a  color  of  gold  in  the  pan,  can  be 
found  practically  anywhere — but  the  obviously 
needed  declaration  was  at  length  made  that  land 
could  not  be  taken  up  as  placer  ground  on  mere 
wash  or  because  a  color  could  be  panned,  its  real 
value  being  on  account  of  its  proximity  to  lode 
claims.  It  must  contain  mineral  in  paying  quanti- 
ties.— Royal  K.  Placer,  13  L.  D.  86.  Nor  where  it  had 


214  PLACERS. 

'no    characteristic    of    any    form    of    placer. — Searle 
Placer,  11  L.  D.  441. 

Discovery  or  Knowledge  of  Mineral  Value. 

Unless  specifically  required  by  State  Statute  or 
District  Rule  no  discovery  shaft  is  required,  but  the 
Act  of  Congress  implies  that  mineral  shall  have  been 
found  before  the  right  to  locate  upon  the  same  as  a 
placer  claim  accrues. — 13  L.  D.  86. 

A  discovery  of  the  mineral  sought  for  upon  the 
claim  is  held  to  be  essential  to  a  valid  placer  location 
of  any  kind.  Surface  indications  or  knowledge  of  its 
existence  upon  adjoining  lands  is  not  enough. — Ne- 
vada Oil  Co.  v.  Miller,  97  F.  688;  Nevada  Co.  v.  Home 
Co.  98  F.  613;  Olive  Co.  v.  Olmstead,  103  F.  o6S;  Weed 
v.  Snook,  77  Pac.  1023. 

A  discovery  pit  or  shaft  on  a  vein  shows  to  the 
eye  a  mineral  formation  specifically  distinct  from 
the  surrounding  country.  A  pit  or  shaft  on  placer 
gravel  shows  nothing  of  that  sort.  A  pit  or  shaft 
on  any  of  the  various  minerals  claimed  as  statutory 
placers  might  or  might  not  show  such  indication. 
Such  working  is  not  essential  to  the  disclosure  of 
mineral  value  on  this  class  of  claims.  But  it  is 
clear  from  the  implied  requirement  of  knowledge  or 
discovery  of  mineral  character,  that  the  ground 
about  to  be  located  must  have  a  special  value  as 
either  placer  proper  or  for  some  special  deposit 
treated  as  placer  ground  under  the  statute,  and  that 
merely  surveying  and  recording  vacant  land  as  and 
for  placer  ground  without  known  value  under  either 
class  is  a  void  proceeding  when  properly  contested  or 
attacked. 

Discovery  is  as  essential  on  a  placer  as  it  is  on 
a  lode  claim. — Steele  v.  Tanana  Mines,  I.ff8  F.  < 
Panning  colors  on  surface  of  deep  gravel  drift,  known 
to  be  gold  bearing  by  work  to  bed  rock  in  the  near 
locality,  makes  a  good  discovery. — Lange  v.  Robin  wm. 
148  F.  199.  There  must  be  "such  a  discovery  of  gold 
as  to  give  reasonable  evidence  that  the  ground  is 
valuable  for  placer  mining." — Charlton  v.  Kelly.  1~>H  /•'. 
436. 


PLACERS.  215 

A  Separate  Discovery  on  Each  Twenty  Acres 
is  not  required  where  there  has  been  a  joint  location 
of  160  acres. — McDonald  v.  Montana  Co.  .M  P.  IMS  : 
Kirk  v.  Meldrum,  21  M.  R.  393;  28  Colo.  >,3.] ;  Union 
Oil  Co.  25  L.  D.  351  overruling  previous  Land  Office 
holding  to  the  contrary. — L.  O.  Reg.  19. 

Use  of  Names — Nominal  Association. 

It  requires  eight  "bona  fide  locators  to  lawfully 
claim  160  acres.  The  names  of  nominal  parties  are 
often  used  to  locate  placer  ground,  and  such  nominal 
association  is  not  questioned  in  land  office  proceed- 
ings, but  its  validity  may  well  be  doubted  when  con- 
tested in  court.  Such  use  of  names  with  agreement 
to  reconvey  without  consideration,  has  been  held  void 
as  against  public  policy.— Mitchell  v.  Cline.  2',  P.  /<//. 

•lit  v.  Corbin.  .''/  /•'.  382. 

In  Gird  v.  California  Oil  Co.  60  Fed.  5.12  the  court 
held  to  a  very  strict  construction  on  this  point,  and 
ruled  that  where  three  persons  in  the  employ  of  a 
corporation  located  sixty  acres  it  was  good  only  to 
the  extent  of  a  single  location  of  twenty  acres. 

The  Excess  over  the  acreage  allowed  to  be  located 
may  be  taken  up  by  a  stranger. — Gohres  v.  Illinois 
Co.  61  P.  666. 

Size  of  Claim  That  May  be  Located  is  limited  to 
20  acres  to  each  individual  or  person;  of  course  a 
corporation  is  one  person  without  reference  to  the 
number  of  its  incorporators.  An  association  of  per- 
sons may  locate  a  claim  in  common  not  exceeding  20 
acres  to  each  individual  in  the  association,  and  not 
exceeding  160  acres  to  the  entire  association.  A  lo- 
cation by  an  association  of  160  acres  is  but  a  single 
claim.— Miller  v.  Chrisman,  13  P.  1083. 

Conformation  to  IT.  S.  Sectional  Subdivisions. 

The  Act  speaks  of  making  survey  for  the  placer 
claim  conform  as  near  as  possible  with  the  rectangu- 
lar subdivisions  of  the  public  lands,  but  under  the 
early  practice  in  the  Land  Office  it  was  utterly  disre- 


216  PLACERS. 

garded  —  so  much  so  as  to  allow  patents  to  issue  in 
fantastic  shape  obviously  intended  to  secure  the  bed 
of  streams  or  other  irregular  advantages.  But  under 
the  present  practice  on  surveyed  sections  strict  con- 
formity is  required,  the  entry  being  confined  to  con- 
tiguous blocks  of  not  less  than  ten  acres  each  and  a 
rectangular  piece  of  ground  when  on  unsurveyed 
ground—  32  L.  D.  IDS,  363,  401;  30  Id.  225;  34  Id.  ',>-. 
44,  56,  260.  The  applicant  is  not  required  by  this  pro- 
vision to  take  in  acreage  wholly  valueless  for  mining 
purposes.—  2  L.  D.  764;  6  Id.,  2.il. 

Where  the  mineral  ground  is  confined  within  a 
narrow  canon  the  location  need  not  conform  to  the 
subdivisions.  —  Mitchell  v.  Hutchinson,  76  P.  55. 

Procedure  to  Complete  Location. 

Presuming  that  free  gold  or  some  other  valuable 
deposit  other  than  a  lode  in  place,  is  known  to  exist 
on  the  ground,  the  claimant,  if  he  desires  the  benefit 
of  the  30  days  allowed  the  discoverer,  should  pla.  •«• 
a  notice  conspicuously  as  follows: 


I--MKM   OF 

fiojil    Illl;/ 

Tln»   undersigned  claims   20   acres   for    placer   rainlnp 

with   .".'•   d.-iys  from   date   to  complete   location   nmi 

ivrnnl.  .II.SIAH    WIN.- 
.l:mu;iry    !».    1008. 

We  do  not  consider  that  the  above  notice  is  es- 
sential in  all  cases,  but  it  is  customary.  If  the 
claimant  was  the  actual  first  discoverer  of  the  min- 
eral it  might  not  be  required;  but  if  the  existence 
of  the  gold  or  other  deposit  had  been  a  matter  of 
common  notoriety,  we  do  not  see  why  one  person 
more  than  another  could  claim  the  time  allowed  to  a 
discoverer  without  some  such  notice. 

Proceeding  to  perfect  the  location  the  claimant 
must  post  upon-  the  claim  the  statutory  notice  (page 
209)  which  may  be  in  form  as  follows: 


PLACERS.  217 

\  ri-iN    NOTICE. 
Vi  ///.     U  '•  Clnint. 

Tiu>  undersigned  claims  j<>  '/</•<*•  for  placer  mining 
purposes.  MS  staked  on  this  trr<»un<l.  Date  of  discovery,  Jan- 
uary '.».  i"  .I..SIAH  WINCHESTER. 

•  \i>  r.-uM. 

ttnllnrtit  riaccr  Claim. 

The  mult  rsii:ne«l  claims  /,;..'»  /"« (  t  in  length  along  the 
iruleh  i.y  •;».•"  /'•/  in  i.readih.  for  placer  mining  purposes,  as 
staked  on  this  trriiunil.  I  »isi-ov«-r»-«l  January  9,  1908. 

T.    S     \Vvi/rEMEYER. 

Dates. 

It  will  be  noted  that  the  notice  on  the  stake  in 
Colorado,  must  contain  the  date  of  discovery  while 
the  record  must  contain  the  date  of  location.  The 
date  when  the  posting  and  staking  are  completed 
would  be  such  date  of  location. 

Place  of  Posting. 

Where  not  directed  by  statute  or  district  rule 
such  notice  should  be  posted  at  the  center  point  of 
the  clain  some  point  where  the  prospecting 

pits  show  actual  work.  It  should  be  conspicuous 
and  either  close  to  the  apparent  discovery  or  at  the 
center  as  above  suggested. 

Stakes  and  Ties. 

The  locator  then  stakes  his  claim,  placing  a 
"substantial  post,"  "sunk  in  the  ground"  at  each 
angle  of  the  claim.  No  center  stakes  are  required. 
Accuracy  and  strictness  in  fixing  and  marking  the 
boundaries  cannot  be  too  severely  urged.  Of  course 
the  discovery  pit  or  some  of  the  angles  should  be 
tied  to  "natural  objects"  or  "permanent  monuments" 
in  order  to  make  a  proper  location  certificate  or  rec- 
ord. We  advise  the  same  as  in  case  of  lode  claim. 
(See  page  JJ.)  A  failure  to  stake  invalidates  the 
claim.— Anthony  v.  JiUson,  16  M.  R.  26;  83  Cal.  296. 

Location  by  Trespass. 

The  rule  that  a  location  cannot  be  initiated  by 
trespass  upon  a  prior  valid  possession  applied  in 


218  PLACERS. 

contest    where    both    claims    were    placers.  —  Kirk    v. 
Meldrum,  65  P.  633. 

Staking  Government  Subdivisions. 

Whether  staking  is  required  where  the  claim  is 
taken  up  by  governmental  subdivisions  has  been  the 
subject  of  curious  judicial  rulings.  It  was  held  that 
the  locator  must  stake  out  his  claim  the  same  as  if 
he  were  locating  on-  a  private  survey,  in  White  v. 
Lee,  21  P.  36,1  This  decision  was  followed  by  a  case 
in  Arkansas,  Worthen  v.  Sidway,  79  8.  W.  77,  and  just 
about  the  same  time  White  v.  Lee  was  overruled  in 
Kern  Co.  v.  Crawford,  16  P.  1111. 

It  would  seem  that  the  question  could  arise  only 
where  a  full  quarter  section  is  taken  up  as  one 
claim,  for  the  government  does  not  stake  any  smaller 
subdivisions,  while  it  allows  subdivisions  as  small 
as  ten  acres  to  be  taken  up.  It  does  not  follow  that 
the  original  survey  stakes  are  on  the  ground  when 
the  location  is  made,  nor  if  they  were  would  they 
afford  the  slightest  notice  that  the  quarter  section 
had  been  located  as  a  mining  claim.  In  view  of  the 
contrary  status  of  the  rulings  the  only  safe  procedure 
is  to  stake  de  novo. 

And  yet  the  Land  Office  has  ruled  that  no  stak- 
ing is  required  where  any  subdivision  is  taken.  22 
L.  D.  409  Where  the  statute  of  any  state  requires 
staking  as  an  item  of  the  location  the  point  should 
be  clear  to  the  contrary. 

Record. 

The  notice  being  erected  and  the  ground  sur- 
veyed and  staked,  the  location  is  complete  and  ready 
for  record,  the  location  certificate  being  in  form  as 
follows: 

I'LACER    LOCATION    CERTIFICATE. 


KNOW    ALL    MEN    BY    THESE    PRESENTS,    That    I, 

\\  inchest  er,  of  the  City  and  County  of  Denver,  State  of 
Colorado,  .  claim,  by  right  of  discovery  and  location,  the 
Nellie  Moore  placer  claim,  containing  twenty  acres  (or  1320 
feet  in  length  by  660  feet  in  width),  situate  in  Cripple  Cr>  •  /, 
Mining  District,  County  of  Teller,  State  of  Colorado,  bounded 
and  described  as  follows,  to  wit  :  Beginning  at  stake  at 
corner  No.  1  :  (here  insert  description,  fjir-iny  u  t-nurxi  l» 


PLACERS.  219 

'inc.   nml   tt/ing   one   or  more  corners   to   a   yorcrnmcnt 
c»nn>-.  ffll   kinnm   natural  objqct  or  permanent  imtnunn'nt. 
Date  of  discovery,  Jan.  9.  1908.     Date  of  location,  Jan. 
15,  1908.     Date   of  Certificate,   Jan.    l>:.  1908. 

JOSIAH    \YINCIII:STI:I;. 

Description  by  claiming  so  many  feet  along  the 
creek  and  so  many  feet  on  each  side  was  sustained 
in  McKinley  Co.  v.  Alaska  Co.  183  U.  8.  563. 

An  amended  location  certificate  may  be  filed  the 
same  as  allowed  for  lode  claims. — Kirk  v.  Meldrum. 
65  Pac.  •  ;. 

The  Statutory  Requirements  of  the  other  mining 
States  which  provide  for  the  manner  of  locating 
placer  claims,  are  as  follows: 

Arizona. 

1.  Post  noti.v  containing  name  of  tin-  claim,  name 
of  locator,  date  of  location  ana  number  of  acres  claimed, 
and  description,  with  reference  to  natural  object  or  perma- 
nent monument. 

L'  Mark  boundaries  with  post  or  monument  of 
stones  at  each  angle  of  claim.  Posts  must  be  4  inches 
(square)  by  4%  feet  long  set  1  foot  in  the  ground  and 
•tUTOUnded  l>y  a  mound  of  stone  or  «>arth.  '"\Ylirn  a  mound 
of  stone  is  used  it  must  be  at  least  thn-c  iv.-t  in  height  and 
f«»m-  iV«-t  in  dianu-ti-r  at  tlu-  hase." 

Within    r,n    days    aft.-r    date    of    location,    record 
with  Bounty   Kcrurdi-r  a   copy  of  the  location  notice. 

Idaho. 

1.  "i-   monument,   as  required   in  location 

of  lode  claims,  at  each  corner,  and  place  on  one  of  t* 
a  notice  of  location  containing  date  of  location,  name  of 
locator,  name  and  dimensions  of  claim.  th<-  mining  district 
(if  any),  and  County:  also  the  distance  and  direction  from 
such  post  or  monument  to  sm-h  natural  oi.j.-(  i  or  permanent 
monument,  if  any  such  tin  i«  !•••.  as  will  fix  and  describe  in 
the  notice  itself,  the  location  of  tin-  claim 

_.  Within  l.~.  days  after  making  iln-  location,  make 
an  excavation  on  the  claim,  for  the  purpose  of  prospecting 
the  same,  of  not  less  than  100  cubic  feet. 

3.  Within  30  days  after  the  location,  record  with 
County  Recorder  or  with  Deputy  Recorder  of  mining  dis- 
trict, a  substantial  copy  of  the  location  notice,  verified  as  In 
the  case  of  lode  claims,  (p.  65.) 

Montana. 

1.  Post  notice  at  point  of  discovery,  containing 
name  of  the  claim,  name  of  locator,  date  of  location  ana 
number  of  acres  of  superficial*  feet  cHaimed. 


220  PLACERS. 

2.  Within  60  days  from  date  of  posting,  the  equiva- 
lent   in    work    of    a    10-foot   shaft    must    be    done    upon    the 
claim. 

3.  Within    30    days    from    date    of    posting,     mark 
boundaries    in    same    manner    as    required    in    case    of    lode 
claims. 

4.  Within   60   days   from   date  -of   posting,   file   with 
Clerk  of  County  a  certificate  of  location  containing  same  as 
notice  posted,  adding  description  of  claim  with  reference  to 
natural  object  or  permanent  monument,  and  "the  dimensions 
or  area   of  the   claim   and   the  location   thereon  of  the   dis 
covery  shaft,  cut  or  tunnel."    This  certificate  must  be  verified 
by  one  of  the  locators. 

Nevada. 

1.  Post  upon   a   tree,   rock   in   place,   stone,   post   or 
monument,  a  notice  of  location  containing  the  name  of  the 
claim,  name  of  locator,  date  of  location,  and  number  of  feet 
or  acres  claimed. 

2.  Mark  surface   boundaries  and   the   location    point 
in   the  same  manner  and  by  same  means  required   for   lode 
claims ;  on   surveyed  land  when   taken   by   legal   subdivision, 
only  the   location   point   need   !><>   markrd.      (p. 

3.  Within  90  days  after  posting  the  notice  of  loca- 
tion,  perform   not   less   than   $20   worth  of   labor   upon    tin- 
claim  for  the  development  thereof  and  record   with    lustrirt 
and    County    Recorder    a    certificate    which    shall    state    the 
name  of  the   claim,  designating  it  as  a  placer  claim  ;   name  of 
the    locator;    date    of    location;    number    of    feet    or    jn-n-s 
claimed  and   description   of  the  claim   with   regard   to  some 
natural    object    or    permanent   monument   so    as   to    identify 
the  claim  and  the  kind  and  amount  of  location   work  done 
and  the  place  on  the  claim  where  said  work  was  done. 

Utah. 

The  statutory  provisions  as  to  location  and  record  of 

lode  claims    (p.  68)    apply  also  to  placer  claims,   the  notice 

and  record  in  cases  of  placers  giving  the  number  of  acres 
or  superficial  feet  claimed. 

Washington. 

1.  Post  in  a  conspicuous  place  at  the  point  of  dis- 
covery a  notice  containing  name  of  the  claim,   name   of  the 
locator,    date   of  discovery  and   posting   of   notice,   whiHi    is 
considered  date  of  location,  description  by  reference  to  legal 
subdivisions  if  on  surveyed  lands,  otherwise  with   reference 
to  natural  objects  or  permanent  monuments. 

2.  Within    30   days    from    discovery    distinctly    mark 
the  location   on   the  ground  so   that   its   boundaries  may   be 
readily  traced  ;   marking  must  be  done  even   if  claim   is   lo- 
cated by  legal  subdivisions. 

3.  Within  30  days  from  the  date  of  discovery  record 
the  notice  (1)  in  the  office  of  the  auditor  of  the  County. 

4.  Within    60    days    from    discovery    perform    labor 
equivalent  in  the  aggregate  to  at  least  $10  worth  for  each 
20  acres. 


PLACERS.  221 

Upon  performance  of  such  labor  file  with  the 
<  'oiinty  Auditor  an  affidavit  showing  such  performance  and 
the  nature  and  kind  of  work  done. 

The  above  paragraphs  4  and  r»  do  not  apply  to  oil 
or  gas  placer  locations. 

Wyoming. 

1.  Securely  tlx  upon  the  claim  a  plain  imtirt1  con- 
taining the  name  of  the  claim,  name  of  the  locators,  date 
of  discovery  and  number  of  feet  or  acres  claimed. 

L  .Mark  the  boundaries  by  substantial  posts  or  stone 
monuments  at  each  corner  of  the  claim. 

3.  Wiihin  '.H >  davs  from  discovery  record  with  the 
County  <'lerk  a  location  certificate  containing  the  name  of 
tin-  claim,  designating  it  as  a  placer  claim,  names  of  the 
locnt  n  ami  number  of  feet  or  acres 

el:iime<l  and  description  by  such  designation  of  natural  or 
fixed  objects  ns  shall  identify  the  claim  beyond  question. 

Alaska,  California,  New  Mexico,  North  and  South 
Dakota,  and  Oregon  have  no  specific  statutory  pro- 
visions for  the  manner  of  locating  and  recording 
placer  claims,  and  in  those  States  such  locations  are 
governed  by  district  rules,  where  such  rules  exist, 
and  by  the  terms  of  A.  C.  §  2324.  See  p.  60. 

A  placer  location  made  according  to  the  forms 
given  for  Colorado,  would  doubtless  be  sufficient  in 
any  of  the  above  named  States  where  district  rules 
do  not  require  more  specific  details. 

A  full  set  of  instructions  as  to  what  makes  a 
valid  placer  location  in  a  territory  having  no  specific 
statute  on  the  subject  is  found  in  Walton  v.  Wild 
Goose  Co.  123  F> 

No  Reservation  Against  Patentee. 

When  patented  under  a  location  of  the  ground 
as  a  "placer  mining  or  stone  quarry  claim"  the  pat- 
entee owns  all  minerals  found  within  its  bounds  ex- 
cept known  lodes — Freezer  v.  Sweeney,  21  P.  20. 
And  doubless  he  owns  to  the  same  extent  under  a 
location  before  patent  subject  to  the  right  to  locate 
lode  discoveries  over  the  same  ground,  and  except 
lodes  apexing  outside  but  dipping  underneath. 


222 


PLACER  CONTAINING  LODE. 


Homestead. 

Lands  located  and  used  as  a  placer  and  also  used 
as  a  residence  by  the  owner,  may  be  selected  by  him 
as  a  homestead,  under  the  State  law  of  exemptions, 
the  question  of  title  in  the  United  States  being  ex- 
cluded.— Gaylord  v.  Place,  83  P.  484. 

Area  in  Feet  or  Acres. 

By  the  following  table  the  number  of  feet  nec- 
essary to  include  any  desired  number  of  acres  when 
in  the  shape  of  a  square  or  parallelogram  may  be 
ascertained: 

Claim       660       x     330       feet    contains      5        acres. 
500       x     500         "  "  5.73       " 

660       x     660         "  "  10 

1320       x     660         "  "  20 

800      'X  1089         "  "  20 

933%   x     933'  "  20 

1320       x  1320         "  "  40 

2640       x  2640         "  "  160 

43560  square  feet  equal  one  acre.  A  square 
208.71*  feet  in  length  and  width  makes  one  acre. 


PLACER  CONTAINING  LODE. 


Claim  Intersected  by  Lode. 


R.  S.  Sec.  2333. — Where  the  same  person,  associa- 
tion or  corporation  is  in  possession  of  a  placer-claim,  and 
also  a  vein  or  lode  included  within  the  boundaries  thereof, 
application  shall  be  made  for  a  patent  for  the  placer- 
Haim.  with  the  statement  that  it  includes  such  vein  or 
lode,  and  in  such  case  a  patent  shall  issue  for  the  placer- 
(hiiin,  subject  to  the  provisions  of  this  chapter,  including 
such  vein  or  lode,  upon  the  payment  of  five  dollars  p«-i- 
acre  for  such  vein  or  lode  claim,  and  twenty-five  feet  of 
surface  on  each  side  thereof.  The  remainder  of  the  placer 
claim,  or  any  placer-claim  not  embracing  any  vein  or  lode- 
cl.-iiin,  shall  be  paid  for  at  the  rate  of  two  dollars  and  fifty 
cents  per  acre,  together  with  all  costs  of  proceedings  ;  and 
where  a  vein  or  lode,  such  as  is  described  in  section 
t \\outy-tliree  hundred  and  twenty,  is  known  to  exist  within 
the  boundaries  of  a  placer-claim,  an  application  for  a  patent 


PLACER  CONTAINING  LODE.  223 

for  such  placer  claim  \\hirh  does  not  include  an  applica- 
tion for  th«»  vfin  or  lode  claim  shall  be  construed  as  a 
:usiv«>  declaration  that  tlu»  ciahnaiu  of  the  placcr-Haim 
has  no  right  of  possession  of  the  vein  or  lode  claim  ;  but 
\vhnv  tin-  existence  of  a  vein  ur  lode  in  a  placer  claim  is 
not  known,  a  patent  for  the  placer-claim  shall  convey  all 
valuable  mineral  and  other  deposits  within  the  boundaries 
thereof  .—Sec.  11.  Mn>>  /".  tffB. 

Known  Lodes  Excluded. 

An  api)lication  for  patent  to  a  placer  claim  is 
not  supposed  to  include  any  known  lode  running 
through  it,  unless  such  lode  is  owned  by  the  appli- 
cant and  espe -ially  designated  in  the  application, 
but  it  covers  any  at'n -r  discovered  lode. — O'Keefe  v. 
Cannon,  52  F.  898. 

The  placer  patentee  acquires  no  title  to  lodes 
known  to  exist  prior  to  and  not  included  in  his  appli- 
cation.— Clary  v.  Bazlitt,  67  Cal.  286. 

The  exception  of  known  lodes  does  not  apply  to 
placer  patents  issued  on  entries  prior  to  May  10,  1872. 
— Cranes  O.  Co.  v.  Scherrer,  66  P.  ^87. 

What  Are  Known  Lodes. 

Where  a  lode  within  the  placer  lines  has  been 
discovered,  located  and  recorded,  and  has  kept  up  its 
labor  to  the  time  of  the  placer  application,  it  is  clear 
that  such  is  a  "known  lode"  beyond  any  possible 
danger  of  construction. 

But  lodes,   which  though  known  have  not   been 

ildered  worth  locating,  or  after  location  have  been 
abandoned,  or  where  they  have  been  known  as  a 

ter  of  common  knowledge  to  be  within  the  lines, 
as  in  the  case  of  outcrops  not  considered  worth  work- 

.  are  not  such  known  lodes  as  are  excluded  from 
a  placer  patent. — McConaghy  v.  Doyle,  75  P.  J^19. 

A  placer  application  was  adversed  by  two  lodes, 
but  won  the  adverse  suits,  and  its  patent  issued: 
Held,  that  this  was  no  adjudication  of  the  non-ex- 
istence of  a  known  lode  even  within  the  area  in  con- 
flict with  the  adversing  lodes  as  against  parties  not 
claiming  under  the  defeated  lodes. — Butte  Co.  v. 
Merriman  (Mont.),  80  P.  675. 


224  PLACER  CONTAINING  LODE. 

Known  But  Not  of  Known  Value. 

It  has  been  with  much  reason  held  that  a  lode 
or  vein  though  known  to  exist  but  having  no  such 
value  as  would  justify  its  exploration  or  working,  or 
by  like  expression  to  the  same  effect— is  not  within 
the  exception  of  the  patent— O'JTeefe  v.  Cannon,  52 
F.  898;  Brownfield  v.  Bier,  89  P.  J,61;  Butte  Co.  v. 
Sloan,  40  P.  211.  It  must  be  a  lode  of  known  prac-  ' 
tical  value  for  working. — Montana  Ry.  v.  Migeon,  68 
F.  811;  77  F.  2J9;  Casey  v.  Thieviege,  48  P.  394. 

The  allegation  in  an  answer  that  there  were  no 
known  deposits  of  sufficient  value  to  pay — is  a  proper 
plea  of  no  known  lodes  and  does  not  state  a  conclu- 
sion of  law.— O'Keefe  v.  Cannon,  52  F.  898. 

Known  But  Not  Recorded. 

It  was  held  in  Noyes  v.  Mantle,  127  U.  8.  348; 
15  M.  R.  611,  that  a  located  claim  was  a  known  lode. 
But  in  Iron  Silver  Co.  v.  Starr  Co.  143  U.  S.  394; 
17  M.  R.  436,  the  Supreme  Court  go  further  and 
hold  that  it  is  sufficient  to  exclude  it  that  it  be  a 
lode  known  to  exist,  and  that  where  a  lode  has  been 
notoriously  cut  in  a  tunnel  within  the  claim,  it  was 
such  a  disclosure  of  the  vein  as  to  bind  the  patentee 
to  a  knowledge  of  it.  And  while  holding  (p.  404) 
that  not  every  outcrop  or  crevice  suggesting  mineral 
would  constitute  a  known  lode  within  the  class  to 
be  excepted,  yet  any  vein  disclosed  and  understood 
to  be  of  value  was  excluded,  and  whether  a  vein  was 
known  and  was  of  such  character  as  to  be  excluded 
was  a  question  of  fact  for  nisi  prius  decision  by 
jury. 

The  mere  fact  that  a  lode  record  has  been  made 
over  the  ground  now  claimed  as  placer  does  not 
prove  that  there  was  a  vein  on  which  to  record. — 23 
L.  D.  476;  Butte  Co.  v.  Sloan,  40  P.  217.  And  when 
the  fact  of  lode  or  no  lode  has  been  left  on  conflict- 
ing evidence  to  the  jury  the  court  will  not  set  their 
finding  aside. — Id. 

A  lode  known  to  exist  before,  may  be  located 
after,  the  patent  issues; .  and  it  is  known  to  exist 


PLACER  CONTAINING  LODE.  225 

when  the  patentee  knew  of  it,  when  it  was  matter 
of  general  knowledge  or  when  an  examination  of  the 
ground  should  have  disclosed  it,  but  lodes  so  low 
in  assay  as  not  to  be  workable  are  not  excepted 
whether  known  or  not. — Mntclimor  v.  McCarty,  87  P. 
85. 

To  Whom  Known. 

In  the  Mike  d-  Starr  case  it  was  held  that  it  must 
be  known  to  the  applicant  or  to  the  community  in 
general.  If  obvious  to  casual  inspection,  knowledge 
was  chargeable  to  the  owner.  But  a  lode  discovered, 
located  and  of  record  before  the  patent  application, 
is  a  known  lode  whether  or  not  the  patentee  had 
knowledge  of  it. — Noyes  v.  Mantle,  15  M.  R.  611;  121 
U.  8.  848. 

In  the  case  of  Reynolds  v.  The  Iron  Silver  Co. 
1M  U.  8.  687;  15  M.  R.  591,  the  court  ruled  that  the 
lode  in  or  underlying  the  Wells  &  Moyer  placer  be 
ing  shown  to  be  known  to  the  applicants,'  could  not 
be  recovered  by  them  in  ejectment  as  against  ad- 
joining lode  owners  who  had  worked  beyond  their 
side  lines  into  the  deposit. 

Date  of  Discovery  Material. 

It   had    been   held   that  the  lode    (to  be  an   ex- 
»'d  known  lode)   must  be  discovered  before  entry 

but  the  date  of  application  is  now  the  conceded  date. 

— Dahl  v.  Raunheim,  182  U.  8.  260;  16  M.  R.  214; 

Mike  d-  Starr  case,  supra. 

The    application    referred    to    is   the   application 

upon  which  the  patent  ultimately  issues  and  the  date 

of   applicaton    is-  the   date   of   filing   the   paper   "M" 

(post  p.  4^3)   in  the  course  of  proceedings  to  obtain 

patent. 


226  PLACER  CONTAINING  LODE. 

Necessity  of  Adverse  or   Protest — Patenting  Lode 
Over  Placer. 

If  a  known  lode,  -whether  held  by  strangers,  or 
not  located  at  all,  though  known  to  exist,  is  under 
the  express  terms  of  the  statute  as  recognized  by 
many  decisions  excepted  from  the  grant — it  would 
seem  a  necessary  deduction  that  it  need  not  file  any 
adverse  claim  to  preserve  its  rights.  But  if  it  be 
neglected  either  to  procure  an  exclusion  from  the 
placer  survey  or  to  adverse  and  the  placer  patent 
issues,  the  Land  Office  will  not  as  of  course  entertain 
an  application  to  patent  the  lode.  Before  the  appli- 
cation will  be  received  it  requires  a  hearing  in  the 
local  Land  Office  after  notice. to  the  placer  patentee 
as  to  whether  in  fact  the  lode  was  known  to  exist, 
and  unless  upon  such  hearing  the  fact  is  affirma- 
tively so  found,  it  denies  the  application. — South 
Star  lode,  20  L.  D.  20 /,;  21  Id.  676. 

If  the  finding  is  that  the  lode  was  known,  the 
placer  patentee  is  still  at  liberty  to  contest  the  lode 
application  by  showing  and  securing  a  judicial  de- 
termination upon  verdict  that  the  lode  was  not 
known  to  exist. — Alice  M.  Co.  v.  Street,  U.  8.  Cir- 
cuit Court,  Denver,  unreported. 

The  practice  of  the  Land  Office  has  not  been  uni- 
form upon  this  point,  and  for  some  years  prior  to  the 
South  Star  case  it  had  refused  all  applications  to 
enter  lode  claims  over  placers  except  by  consent  of 
the  placer  patentee  on  the  ground  that  the  ex  parte 
proof  of  no  known  lodes  originally  made  by  the  ap- 
plicant definitely  established  the  non-existence  of 
known  lodes.  And  yet,  in  instances  a  patent  to 
both  lode  and  placer  had  been  granted,  as  in  Iron  S. 
Co.  v.  Campbell,  135  U.  S.  286;  16  M.  R.  218.  In  that 
case  each  party  having  his  proof  of  legal  title  in  the 
shape  of  a  patent,  the  question  of  priority  was  held 
to  be  an  extrinsic  fact  to  be  found  and  settled  by  the 
jury  under  the  instructions  of  the  court. 


PLACER  CONTAINING  LODE.  227 

The  patent  is  held  conclusive  evidence  that  the 
lan.l  conveyed  was  placer  ground. — Dahl  v.  Raun- 
hciw.  /.;.'  r.  9,  MO;  16  M.  A'.  .'/};  Huttc  Co.  v.  Sloan, 
'tn  /'.  .>  n .  There  are  expressions  in  both  these 
opinions  which,  taken  by  themselves,  would  read  that 
the  i latent  was  conclusive  proof  that  no  lode  existed, 
but  to  so  decide  on  consideration  of  the  whole  case 
was  evidently  not  the  intention  of  the  court. 

The  practical  conclusion  from  this  vexed  state 
of  the  title,  arising  from  the  unwise  reservation  from 
a  government  grant  of  a  piece  of  land  with  no  de- 
fined bounds  and  even  without  acknowledged  exist- 
ence, is  that  a  lode  within  placer  lines  should  as- 
sert itself  by  adverse  against  the  placer  application 
at  the  OUT  start,  so  as  to  avoid  subsequent  Depart- 
mental inquiry.— 26- L.  D.  573;  27  Id.  676.  And  where 
the  application  is  by  the  lode  claimant  over  a  prior 
placer  patent,  the  safe  course  is  for  the  placer  to 
adverse  if  tin-  facts  exist  upon  which  to  contest  the 
title  of  the  lode  claimant. 

Proof  of  Known  Lode  by  Contiguity. 

Running  a  lode  survey  over  placer  lines  raises 
no  inference  that  the  vein  enters  within  them. — 
Ifnunheim  v.  Dahl,  9  P.  892;  132  U.  S.  260;  26  L.  D. 

Nor  is  it  sufficient  that  quite  a  number  of  shafts 
sunk  elsewhere  in  the  district  disclosed  horizontal 
deposits  which  miiiht  be  parts  of  a  vein  of  continu- 

extension  through  all  that  territory. — Sullivan 
v.  Iron  Silver  Co.  US  U.  8.  431.  Nor  does  the  grant- 
ing of  a  patent  subsequent  to  the  placer  patent  over 
the  placer  ground  raise  any  conclusive  presumption. 
The  question  in  such  case  is  then  an  extrinsic  issue 
dependent  on  proof. — Iron  Silver  Co.  v.  Campbell, 
135  U.  S.  286;  16  M.  R.  218;  25  L.  D.  460. 

Locating  Lode  Within  Placer. 

The  placer  owner,  or  a  stranger  with  his  con- 
sent, may  locate  a  lode  claim  within  the  placer  sur- 
vey.— McCarthy  v.  Speed,  77  N.  W.  590.  And  doubt- 
less the  discoverers  without  such  owner's  consent 


228  PLACER  CONTAINING  LODE. 

by    peaceable    entry    may    make    such    location. — 1 
Lindley,  §  413. 

It  has  been  held  that  no  third  party  can  enter 
within  the  lines  of  a  placer  location  to  prospect  for 
lodes.  And  if  he  does  so  enter,  discover  and  locate 
a  lode  it  is  a  claim  initiated  by  trespass  and  is  void. 
—Clipper  Co.  v.  Eli  Co.  194  U.  S.  220. 

This  practically  gives  all  blind  lodes  to  the  placer 
owner  and  thereby  defeats  the  intent  of  the  Act  of  . 
Congress.  But  it  is  within  the  limits  of  judicial  con- 
struction and  is  therefore  a  binding  authority  to  the 
extent  of  the  decision.  But  it  does  not  go  to  the 
extent  of  preventing  an  entry  to  locate  upon  a  visi- 
ble outcrop;  nor  can  a  placer  location  be  so  made  as 
to  cover  the  lode  formations  unless  it  is  properly 
placer  ground  and  has  a  valid  existence  as  a  bona 
fide  placer  claim. — Searle  Placer,  11  L.  D.  4-'i1- 

Where  the  claim  is  a  placer  alleged  to  carry 
gold,  it  should  be  gold  that  can  be  "secured  with 
profit."— U.  S.  v.  Iron  S.  Co.  128  U.  8.  fi>  /. 

In  contest  between  a  placer  claim  and  an  older 
lode  title  which  the  placer  lines  enclosed  the  burden 
of  proof  is  on  the  placer  to  show  that  there  was  no 
such  metallic  vein  as  justified  a  lode  location. — Bevis 
v.  Markland,  ISO  F.  226. 

Width  of  Such  Lode  Claim. 

Where  the  location  of  the  lode  is  made  within 
the  bounds  of  the  placer  location,  and  after  the  date 
of  the  placer  location,  it  has  been  held  that  the  lode 
claimant  is  restricted  to  fifty  feet  in  width.— Mt. 
Rosa  Co.  v.  Palmer,  56  P.  176.  But  where  the  lode 
was  not  only  known  to  exist,  but  was  a  valid  loca- 
tion prior  to  a  placer  location,  the  lode  is  entitled 
to  its  full  width  as  staked  against  the  placer  locator 
or  patentee.— Noyes  v.  Mantle,  127  U.  S.  848;  15  M. 
R.  611.  See  28  L.  D.  41;  32  Id.  5}S. 


TAILINGS.  229 

TAILINGS. 

Each  Claim  Must  Take  Care  of  Its  Own. 

K.  S.  <'<»1<>.  S»v.  4214.  In  no  *-as<>  shall  any  pfrson  or 
persons  be  allowed  to  flood  the  property  of  another  person 
with  wau-r.  <>r  wash  down  tin-  tailings  of  his  or  their  slnuv 
upon  the  claim  or  property  of  other  persons,  but  it  shall 
be  the  duty  of  every  miner  to  take  care  of  his  own  tnilings. 
upon  his  own  property,  or  become  responsible  for  all  dam- 
ages that  may  arise  therefrom. — <svr.  :*.  \»/r.  7.  IMI. 

The  Relation  of  One  Claim  to  Another  where 
both  are  %  situate  in  the  same  gulch  or  on  the 
same  waterflow  was  sought  to  be  regulated  by  the 
above  section  passed  at  an  early  date  which  fixed  in 
terms  a  matter  of  long  continued  dispute  in  Cali- 
fornia. The  tendency  of  the  later  decisions  is  to 
th<>  effect  that  the  upper  claim  cannot  justify  cover- 
ing up  the  lower  claim  on  the  plea  of  either  custom, 
priority  or  necessity. — Lincoln  v.  Rodgers,  14  M.  R. 
7.''.  /  Mont.  217;  Fitzpatrick  v.  Montgomery,  50  P. 
//'<'. 

Upper  and  Lower  Claim  in  Same  Gulch. 

Notwithstanding  the  above  Act  or  similar  local 
legislation  elsewhere,  the  natural  invitation  of  the 
stream  to  utilize  its  current  is  a  temptation  too  po- 
tent to  be  resisted.  No  placer,  barring  exceptional 
instances,  can  be  conveniently  worked  without  en- 
croaching more  or  less  upon  the  claims  below.  This 
leads  on  the  one  side  to  trespass,  on  the  other  side 
to  concessions,  and  their  relations  thus  become  in- 
volved with  questions  of  license,  contract  and  estoppel. 

The  legal  right  of  the  claim  to  be  exclusively 
enjoyed  by  its  own  occupant  is  plain  with  or  without 
the  aid  of  the  Statute,  subject  to  such  considerations 
as  courts  of  equity  will  give  to  the  hardship  of  deny- 
ing the  use  of  a  natural  outlet  to  a  claim  so  situate  to 
its  neighbors  on  the  stream  below  that  its  use  of 
the  stream  is  a  physical  necessity.  The  upper  claim 
is  therefore  not  denied  the  right  to  rush  its  tailings 


230  TAILINGS. 

across  the  lower  claim  if  they  are  no:  allowed  to 
lodge  upon  such  claim.  A  claim  staked  and  recorded 
below  for  dumping  purposes  would  also  forestall  the 
location  of  the  same  ground  for  mining  purposes, 
except  subject  to  the  prior  easement  of  the  right  to 
deposit  tailings. 

Slight  Injury  to  Lower  Claims. 

The  owner  is  not  liable  for  pollution  of  stream 
incidental  to  placer  mining,  or  to  washing  iron  ore. 
It  is  classed  among  non-actionable  injuries.  Nor 
will  such  use  of  the  stream  be  enjoined  even  if  an 
action  lies,  except  in  wilful  or  extreme  cases. — Clif 
ton  Co.  v.  Dye,  6  So.  192;  Hill  v.  King,  J,  M.  R.  533; 
8  Cal.  337;  Atchison  v.  Peterson,  1  M.  k.  583;  20 
Wall.  507. 

But  a  material  injury  will  be  prevented  by  writ 
or  compensated  by  damages. — ro//////////.s-  Co.  v. 
Tm-krr.  ,'i;  .Y.  K.  ti.W;  Tennessee  Co.  v.  Hamilton.  // 
No.  nn  :  Drake  v.  \AK\\I  llnsley  Co.  Id.  ?}.'>; 
v.  Markle,  33  Atl.  7Jf. 

A  Boom  Ditch  was  enjoined  in  Carson  v. 
<;~>   P.  81',,  and   hydraulics  in   York  v.  Davt.'.s  -/  .   /,-/. 
8*0, 

Injunctive  Relief  Against  Deposit  of. 

Where  there  is  neither  license  nor  the  protection 
of  a  prior  location  for  tailing  purposes  and  the 
ground  below  has  been  taken  up  by  other  parties, 
it  is  plain  that  the  upper  cannot  lawfully  use  tin- 
lower  claim  as  a  place  of  deposit. — Fuller  v.  Swan 
River  Co.  16  M.  R.  '^',  > :  l!  ('<>]<>.  \  >. ;  Cheesman  v. 
Hale.  7.9  P.  25'*.  To  do  so  would  be  an  invasion 
of  the  legal  rights  of  the  lower  claimant  for  which 
he  might  recover  damages,  but  it  does  not  follow 
that  in  every  case  the  courts  would  interfere  to  re- 
strain the  upper  claimant  by  injunction. 

And  if  the  lower  claims  could  be  shown  to  have 
been  located  or  purchased  for  any  purpose  of  annoy- 
ance to  the  upper  claims,  the  want  of  equity  in  such 
case  upon  an  application  for  injunction,  would  be 
manifest. — Edwards  v.  Allouez  M.  Co.  7  M.  R.  577; 


TAILINGS.  i:ll 

38  Mich.  46.  Placer  company  enjoined  at  suit  of 
water  works  against  fouling  stream. — Travis  Co.  v. 
Mill*.  !>',  /  i)09.  At  suit  of  the  county  as  a  public 
nuisance.  Yuba  Count)/  r.  Kate  Hayes  Co.  Uf  P. 

The  incidental  flow  of  mud  and  fine  tailings  not 
sufficient  to  accumulate  as  deposit,  but  affecting  only 
the  character  of  the  water  or  causing  but  slight  dam- 
age, if  an  injury  at  all,  is  not  such  as  to  be  inter- 
fered with  by  injunction. — Atchison  v.  Peterson, 
tupra;  r.  x  v.  N.  Bloomfield  Co.  »3  F.  i;.n. 

An    injunction    against    tailings    will    not    issue 
where  there  is  a  remedy  at  law  and  the  injunction 
would  result  in  the  discharge  of  a  great  number  ol 
employees. — McCartliy    v.    Bunker    Hill    Co.     7)7     / 
.''»/. 

Where  a  coal  company  could  by  reasonable  out- 
lays prevent  stream  pollution  a  preliminaiy  injunc- 
tion should  be  allowed. — Roaring  Creek  Co.  v. 
Anthracite  Co.  (Pa.)  61  Atl.  >'//. 

Injunction  refused  against  smelter  fumes  de- 
stroying timber  and  plaintiff  left  to  its  remedy  at 
law  for  damages. — Mountain  Cop.  Co.  v.  U.  8.  142 
r.  • 

Complaint  for  damage  from  tailings  and  stream 
pollution  set  forth  at  length  and  held  sufficient. — 
Hill  v.  Standard  M.  Co.  (Ida.)  x:>  r.  '.«>-. 

Injunction  against  smelter  fumes  refused  if  de- 
fendant pay  actual  damages.  Comparative  values  of 
the  investment  and  the  property  injured  considered. 
— McCleary  v.  Highland  Boy  Co.  l.',0  F.  951. 

Where  several  mills  or  mines  contribute  to  the 
common  injurious  result,  they  may  be  sued  jointly 
where  injunctive  relief  is  asked,  but  for  damages 
must  be  sued  separately,  and  where  several  neigh- 
boring plaintiffs  suffer  a  common  injury  they  may 
join  in  the  equity  proceeding,  but  in  an  action  for 
damages  each  party  must  sue  and  defend  separately. 
— Madison  v.  Ducktown  Sulphur  Co.  83  S.  W.  658; 
Warren  v.  Parkhurst,  92  N.  Y.  S.  125;  Strobel  v. 


232  TAILINGS. 

Kerr  Salt  Co.  58  N.  E.  142;  21  M.  R.  38.  Watson  v. 
Colusa-Parrot  Co.  19  P.  14. 

Tailings  Are  Property  of  the  Miner  Who  Made 
them,  so  long  as  retained  on  his  own  land  or  under 
his  control  and  not  abandoned. — Jones  v.  Jackson,  V 
Gal.  231 ;  14  M.  R.  72.  When  allowed  to  flow  upon  the 
land  of  another  he  becomes  entitled  to  them. — Id. 
They  belong  to  the  lessee  for  the  time  being — but  not 
after  he  has  ceased  acts  of  ownership. — Erwiris  App. 
16  M.  R.  91;  12  Atl.  !',:>. 

Location  of  Dump  Ground. 

It  has  been  held  in  Jones  v.  Jackson,  supra, 
that  a  reasonable  amount  of  ground  below  a  mining 
claim  proper,  may  be  located  as  a  dump  or  place  of 
deposit  for  tailings.  The  same  case  holds  that  mere 
posting  of  notice  would  not  be  sufficient  to  hold  such 
ground.  We  would  advise  as  strict  a  location,  in- 
cluding staking,  notice  and  record  as  should  be  made 
in  the  case  of  the  location  of  the  mining  or  ditch 
claim,  to  which  such  tailings  claim  may  be  appurte- 
nant. In  the  nature  of  things  the  boundaries  of  swh 
a  claim  also  would  be  strictly  confined  to  the  abso- 
lute needs  of  the  upper  claim;  nor  do  we  consider 
that  such  located  easement  would  hold  indefinitely 
without  user.  It  is  a  claim  not  so  much  of  express 
right  as  of  necessity.  The  doctrine,  however,  that  an 
easement  may  be  created  on  public  land  is  distinctly 
held  in  the  above  case,  and  in  Lincoln  v.  Rodgers, 
supra;  O'Keiffe  v.  Cunningham,  9  M.  R.  /.>/:  .'/  Cal. 
589.  In  Miser  v.  O'Shea,  62  P.  4*>1,  such  right  is  ex- 
pressly denied. 

A  deposit  of  valuable  tailings  on  public  land 
will  be  protected  against  an  attempt  to  locate  the 
same  as  a  placer. — Ritter  v.  Lynch,  123  F.  930. 
The  word  "tailings"  by  usage  of  the  parties  con- 
strued to  include  "slag." — Butte  Co.  v.  Montana  Co. 

m  F.  524. 


.      TAILINGS.  233 

Mill  Tailings. 

A  mill  owner,  though  the  prior  appropriator, 
has  no  right  to  flow  tailings  into  a  stream  when  at 
slight  cost  they  could  be  so  impounded  as  not  to 
materially  foul  the  water. — Suffolk  Co.  v.  San  Miguel 
Co.  48  P.  828.  A  mill  will  not  be  allowed  to  so  pol- 
lute the  water  as  to  render  it  unfit  for  use  by  prior 
irrigation  appropriators. — Montana  Co.  v.  Gehring, 
75  F.  S85. 

'The  rights  and  duties  of  two  mills  using  the 
same  water,  one  above  and  one  below,  are  fairly 
stated  in  Otaheite  Co.  v.  Dean,  102  F.  929. 

Location  Upon  Deposits  of  Tailings. 

Vacant  land  upon  which  tailings  have  been  de- 
posited may  be  claimed  and  worked  the  same  as  land 
containing  natural  deposits,  and  trespass  maintained 
by  the  claimant  against  a  party  carrying  away  such 
tailings. — Rogers  v.  Cooney,  14  M.  R.  85. 

A  party  may  take  up  a  claim  for  mining  pur- 
poses which  has  been  and  still  is  used  as  a  place 
of  deposit  for  tailings  by  another — but  in  such  case 
his  mining  right  would  be  subservient  to  the  prior 
right  of  deposit. — O'Keiffe  v.  Cunningham,  supra.  On 
the  other  hand  the  right  to  dump  may  be  lost  by 
allowing  the  mining  claimant  to  hold  exclusive  ad- 
verse possession. — McLaughlin  v.  Del  Re,  16  P.  881. 

The  Debris  Cases. 

On  the  plea  of  interference  with  navigable  wa- 
ters the  United  States  has,  on  the  San  Joaquin  and 
Sacramento  Rivers,  in  California,  prohibited  all  hy- 
draulic mining,  except  under  government  license  and 
regulation.  The  Act  of  1893  (27  St.  L.  501. 'Amended, 
1907.  34  Stf  L.  1001)  makes  such  mining  a  misde- 
meanor unless  carried  on  by  Federal  supervision. 
This  Act  and  the  decisions  under  it  is  the  final 
outcome  of  what  SAWYER,  J.,  candidly  calls  "a  suit 
between  the  mining  counties  and  valley  counties." — 
18  F.  792.  There  are  obvious  constitutional  points 
arising  out  of  such  an  act,  but  it  has  been  thus 


234  NUISANCE. 

far  sustained. — U.  N.  v.  N.  Bloomfield  Co.  81  F.  2JtS; 
88  F.  66 J,. 

A  review  of  the  progress  of  this  struggle  is 
fairly  given  in  the  opinion  of  H.\\\i  i  .y  J.  in  the  last 
citation. 

The  reference  to  this  act  and  to  the  opinion  in 
88  Federal  Reporter,  renders  it  unnecessary  to  fur- 
ther cite  the  numerous  cases  almost  uniformly  ad- 
verse to  the  miner,  which  led  up  to  it.  Some  of 
them  were  so  harsh  as  to  suggest  that  judicial  power 
had  reached  its  limits.— 9th  Ed.  p.  !*.>. 


NUISANCE. 

Analogous  to  the  last  heading  is  the  subject  of 
actions  against  smelters  for  destruction  of  crops  and 
other  like  injuries  by  noxious  fumes;    the  pollution 
of  streams,  etc.     The  subject  is  fairly  considered   in 
Madison    v.    Ducktown    Sulphur    Co.    83    8.    W. 
which  goes  into  the  matter  of  doing  justice  between 
all  parties  where  the  injury  is  substantial  but   prac- 
tically   non-preventible    without    undue    loss    to    the 
defendant. — McCleary    v.   Highland    Boy    Co.    I  /"    / 
951. 

The  Statute  of  Limitations  does  not  begin  to 
run  until  the  injury  is  complete. — Sterrett  v.  North- 
port  Co.  10  P.  .Hit;. 

Mine  enjoined  from  polluting  waters  of  stream 
used  by  distillery.  Young  v.  Bankier  Distillery.  L. 
R.  App.  C.  691  (1893). 

The  pollution  of  a  fresh  water  stream  by  salt 
well  was  enjoined  in  Strobel  v.  Kerr  8.  Co.  21  M.  R. 
38;  58  N.  E.  !',.>. 


MILL  SITES. 


Extent — How  Patented. 

R.    S.    Sec.    2337. — Where   non-mineral    land   not   con- 
tiguous to  the  vein  or  lode  is  used  or  occupied  by  the  pro- 


M  1 1, L  SITES.  235 

prietor  of  siK-h  vein  or  lode  for  raining  or  milling  purposes, 
such  non-adjacent  BUrface-grOQltd  may  l>e  embraced  and  in- 
cluded in  an  application  for  a  patent  for  such  vein  or  lode, 
ami  the  same  may  !M>  patented  therewith,  subject  to  the 
same  preliminary  requirements  as  to  survey  ami  notice  as 
are  applicable  to  veins  or  lodes;  Inn  no  location  hereafter 
made  of  such  non-adjacent  land  shall  exceed  live  acres,  and 
payment  fur  the  same  must  be  made  at  the  same  rale  as 
tixed  by  this  chapter  for  the  superlici.  s  of  the  lode.  The 
<. \\m-r  of  a  quart  /.-mill  or  reduction  works,  not  owning  a 
mine  in  connection  therewith,  may  also  ivceive  a  patent 
for  his  mill  site,  us  provided  in  this  section.  Bee,  /•"-.  !/<'.'/ 
/'/.  / 

Location  and  Record. 

Mill  sites  are  located  by  posting  notice  and  stak- 
ing l>\  a  substantial  post  or  stake  at  each  angle, 
which  ordinary  prudence  would  require  to  be  in- 
scribed with  th<>  name  of  the  mill  site  and  the  num- 
ber of  the  corner.  There  are  no  Congressional  regu- 
lations of  the  details  of  such  location,  but  their 

>rd  should  conform  to  the  requirements  applicable 
to  the  record  of  all  classes  of  claims,  to  wit,  that 
it  contain  a  sufficient  description  by  reference  to 
natural  objects  or  permanent  monuments;  which 
terms  of  the  statute  are  no  more  than  a  statement  of 
what  is  required  as  a  matter  of  course  without  such 
statute!  In  other  words,  where  any  record  whatso- 
ever is  essential  to  either  original  claim  or  convey- 
ance, it  must  contain  a  description  sufficient  to  iden- 
tify the  land  intended  to  be  described. 

In  Colorado  the  form  in  use  is  the  statutory 
wording  prescribed  for  all  cases  of  location  of  non- 
mineral  lands,  R.  S.,  See.  •>!'',. 

Post  location  notice  at  some  conspicuous  point 
on  the  claim,  in  substance  as  follows: 

LOCATION     KOI  i'  i: 

I    claim    the    Corinnc    mill    site    as    staked    on    this 
ground,    466    feet    square.     Five    acres.      Date    of    location 

.Ian.     'J.     1!)08.  TII«.\IAS    W.    FlTCH,    .In. 

And  make   record   in  the  proper  county   of  the 

LOCATION*    CKRTIFICATE     <>F     MILL     Sill: 
TO   ALL    WHOM   THESE    PKKSKMS    MAY    (  (»N<  i;i;\  ;        KnOW 

\(>   that  7,  Thoma*   W.    l-'ifrh.  ./>..   ,,f    rittxhiinili.   County   of 
'i]nn,u.   Commonwealth    of    Penii«!/lr<niiu.   do    hereby   de- 


236  MILL  SITES. 

clare  and  publish  as  a  legal  notice  to  all  the  world  that  I 
have  a  valid  right  to  the  occupation,  possession  and  enjoy- 
ment of  all  and  singular  that  tract  or  parcel  of  land,  not 
exceeding  five  acres,  situate,  lying  and  being  in  Pioneer 
Mining  District,  in  the  County  of  Dolores,  in  the  State  of 
Colorado,  bounded  and  described  as  follows,  to  wit :  Th«> 
Corinne  mill  site,  beginning  at  corner  No.-  1,  from  which, 
etc.  (description  continued)  to  the  place  of  beginning. 

Together    with    all    and    singular    the    hereditaments 
and  appurtenances  thereunto  belonging  or  in  anywise  appcr- 
.  taining.  „ 

Witness  my  hand  and  seal  this  27th  day  of  Jununrit. 
in  the  year  of  our  Lord  one  thousand  nine  hundred  and 
eight. 

THOMAS  W.  FITCH,  Jit.     [SEAL.] 

For   form   of  acknowledgment  see  page  252. 

A  name  is  not  essential  to  a  mill  site,  but  it  is 
convenient  and  preferable  to  style  it  by  a  name. 

Location  and  record  should  be  accompanied  or 
followed  by  substantial  occupancy  or  valid  improve- 
ments. The  digging  of  a  ditch  is  not  the  location  of 
a  mill  site.  "Land  is  appropriated  by  one  character 
of  acts,  water  by  another." — Robinson  v.  Imperial 
Co.  10  M.  R.  Sir;  5  Nev.  44. 

By  the  U.  S.  Law  They  Are  Limited  to  Five  Acres, 
but  by  the  district  regulations  were  sometimes  re- 
stricted to  much  less  extent. 

A  square  location  466.69x466.69  feet  contains  five 
acres. 

They  Cannot  Lawfully  be  Located  on  Mineral 
land.— 8  L.  D.  195;  18  Id.  105.  And  if  so  located  may 
be  contested  by  proceedings  in  the  Land  Office. — 5 
L.  0.  51. 

The  location  of  a  mill  site  not  known  to  con- 
tain mineral  at  the  time  of  its  location  will  hold 
against  a  lode  claim  based  upon  a  discovery  after 
the  mill  site  location  was  complete.  The  finding  of 
mere  nominal  lode  values  does  not  make  the  land 
mineral  in  character  at  any  time  and  the  discovery 
of  real  mineral  values  will  not  destroy  a  mill  site 
completely  located  before  any  such  mineral  value  was 
known.— Cleary  v.  Skijflch,  21  M.  R.  284;  65  P.  59. 


MILL  SITES.  237 

In  Hart  man  r.  xmitli.  1't  P.  648,  it  was  held 
that  a  mill  site  was  a  mining  claim  and  as  such  ex- 
cluded from  a  town  site  patent.  In  Clcary  v.  Skifficli. 
the  Court  says  "A  mill  site  is  a  mining 
location."  In  the  latter  case  the  expression  is  a  mere 
introductory  clause.  Biit  to  chance  the  exclusion 
from  a  town  site  patent  of  a  mill  site  claim  on  the 
forced  or  technical  meaning  of  one  word,  would  be 
rave  risk,  lluna  fulr  prior  location  for 
ranch  purposes  will  defeat  a  mill  site.*— Hamburg  Co. 
v.  Stephenson,  /7  Nev.  450. 

Two  Classes  of  Mill  Sites. 

The  latter  clause  of  §  2337  supra,  provides  for 
patenting  of  land  actually  occupied/by  a  mill,  but 
the  former  and  more  important  portion  of  the  sec- 
tion provides  a  means  of  procuring  surface  area  to 
cover  such  ground  as  may  be  used  in  any  manner 
incidental  to  the  mine. 

First  Class— Mill  Site  With  Lode. 

Congress  allows  to  each  lode  claimant  the  priv- 
ilege of  taking  up  five  acres  of  ground,  upon  "the 
theory  that  such  additional  surface  is,  or  may  be, 
needed  either  incidentally  for  the  operation  of  the 
mine  (storage  room,  boarding  houses,  miners'  cab- 
ins, ore  houses,  etc.)  or  indirectly  by  a  mill,  patio, 
ra.  or  other  works  for  treating  ore.  In  fact,  any 
largely  operated  mine  does  require  such  space,  if  not 
more.  The  land  so  needed  is  strictly  within  the  in- 
tent of  the  law;  and  though  no  mill  may  be  erected 
or  contemplated,  such  area  of  surface  is  styled  a 
mill  site. 

The  land  taken  under  this  clause  must  be: 

1.  Non-mineral. 

2.  Non-contiguous  to  the  lode. 

3.  Used  or  occupied  by  the  owner  for  mining  or 
milling  purposes.— 7.J   L.  D.  175;  82  Id.  128;  34  Id. 
9*5. 


238  MILL  SITES. 

1.  Non-Mineral. 

The  test  on  this  point,  following  analogous  rul- 
ings between  agricultural  and  mining  claims,  would 
be:  has  the  land  greater  value  for  its  mineral,  or  for 
surface  use  in  connection  with  the  mine? — 13  L.  D. 
86;  517. 

The  form  of  proof  of  such  non-mineral  character 
is  by  the  affidavits  of  disinterested  witnesses. 

2.  Non-Contiguous. 

The  mill  site  must  be  non-contiguous  to  the  lode. 
32  L.  D.  128;  and  a  location  made  since  January  1, 
1904,  must  be  situate  some  distance,  and  its  bound- 
aries be  wholly  distinct,  from  the  lines  of  a  lode 
location.— 3//  L.  D.  MO, 

3.  What  Is  Sufficient  Use. 

The  building  on  the  land  of  a  pumping  plant  to 
carry  water  to  the  mine  is  a  sufficient  mining  use. — 
11  L.  D.  338.  Or  storing  water  on  the  same  for  the 
mine. — 13  Id.  175.  Use  for  storing  ores  or  for  tail- 
ings, shops  or  houses  for  workmen. — 5  Id.  192.  Or 
for  houses  for  workmen  on  the  mill. —  /  't  Id.  173. 

The  use  of  a  cabin  on  the  land  for  storing  tools 
was  held  sufficient  in  Hartman  v.  Smith,  14  P.  < 
This  case  practically   decides   that  the  ordinary    us*- 
of  a  prospector's  cabin,  wherever  it  may  be  located, 
if  not  on  ground  contiguous  to  the  lode,  is  enough 
to  justify  the  claiming  of  the  site  of  the  same  ;i 
mill  site.     Cited  and  followed   in   Vtilralda   v.  Silver 
Peak  Mines,  86  F.  90. 

Insufficient  Use. 

The  mill  site  section  cannot  be  availed  of  to  pat- 
ent water  rights  proper. — 6  L.  D.  706;  9  Id.  201;  12 
Id.  624.  Or  for  the  benefit  of  a  third  party.— 11  Id. 
561.  The  benefit  must  be  to  the  particular  lode  in 
question.— 10  Id.  196. 

A  lode  owner  has  no  right  to  attach  to  his  pat- 
ent application,  at  the  request  of  a  third  party,  an 


MILL  SITES.  239 

independent  piece  of  ground  as  a  mill  site. — Ham- 
burg Co.  v.  Stephenson,  30  P.  1088. 

Land  for  its  timber  cannot  be  located  as  a  mill 
site,  though  the  timber  be  used  and  needed  at  the 
mine. — 7  L.  D.  5J7.  Timber  has  always  been  con- 
sidered as  a  mining  necessity,  and  the  taking  of  it 
for  such  purpose  clearly  puts  the  land  to  a  mining 
us*-.-— Tartar  r.  Spring  Creek  Co.  14  M.  R.  371;  Id. 

note  9,  But  the  Land  Office  rulings  have  always 
been  to  the  contrary. 

A  boarding  house,  store,  saw-mill  and  wharf  held 
insufficient  mining  use,  where  a  group  of  mill  sites 
was  attempted  to  be  patented  with  a  group  of  lodes. 
—32  L.  D.  />. 

Second  Class — Mill  or  Reduction  Works. 

I'ndr-r  this  class,  where  the  application  is  for 
the  mill  site  alone,  there  must  be  a  mill  or  reduc- 
tion works — incidental  uses  are  not  sufficient.  That 
the  site  contains  a  dam,  penstock  and  pipes  for  driv- 
ing works  at  neighboring  mine  will  not  answer. — 
.''  L.  D.  460;  29  Id.  148.  And  a  patent  w411  not  issue  to 
give  additional  ground  to  a  mill  site  already  pat 
ented. —  /..'  /'/.  75.  Nor  on  two  adjoining  mill  sites 
with  improvements  on  the  line  between  them. — 14 
in.  II.  It  will  not  be  allowed  on  the  strength  of  car- 
rying water  to  a  smelter  on  other  ground. — ,5  Id.  190. 

Separate  Application  for  Mill  Site. 

It  has  been  ruled  that  where  a  lode  has  gone  to 
patent  the  owner  may  afterwards  by  separate  appli- 
cation obtain  a  patent  on  a  mill  site  used  in  connec- 
tion with  the  lode,  and  that  such  application  need 
not  show  an  actual  mill  on  the  ground.  Such  mill 
site  is  allowed  to  go  to  patent  on  the  theory  that 
every  lode  is  entitled  to  a  mill  site,  and  it  is  a  matter 
of  indifference  to  the  department  whether  the  owner 
applies  for  the  patent  on  lode  and  mill  site  together 
or  separately.—^  L.  D.  496;  L.  0.  Reg.  62.  A  sepa- 
rate mill  site  for  each  lode  in  a  group  was  disal- 
lowed in  32  L.  D.  128.  Where  more  than  one  mill 


240  SEVERANCE. 

site  is  applied  for,  reason  for  its  necessity  must  be 
shown.— 34  L.  D.  325. 

The  $500  Improvements  on  the  Lode  are  sufficient 
to  enter  both  lode  and  mill  site,  if  the  mill  site  is 
used  or  occupied  by  the  applicant  for  mining  or  mill- 
ing purposes. — 8  L.  D.  195. 

Proof  of  Improvements. 

The  early  practice  of  the  Land  Office  was  to  pat- 
ent a  mill  site  when  applied  for  in  connection  with 
a  lode,  without  proof  of  either  use  or  improvements. 
This  practice  was  taken  advantage  of  to  patent  build 
ing  lots,  and  all  sorts  of  claims  as  mill  sites,  but 
the  department  now  requires  proof  not  only  that  it 
is  non-mineral  land,  but  that  it  is  used  for  milling 
purposes  or  in  connection  with  the  mine — instances 
of  such  use  being  above  given. 

This  proof  of  the  use  of  the  site  in  connection 
with  the  mine  is  by  affidavit  of  the  applicant  and  of 
two  disinterested  witnesses.  Intention  to  use  is  not 
sufficient.— 14  L.  D.  544. 

Adverse  and  Protest. 

When  a  mill  site  application  conflicts  with  a 
prior  claim  of  another  to  the  ground  for  like  pur- 
poses it  may  be  adversed;  or  it  may  adverse  or  be 
adversed  by  a  lode  or  placer. — 1  L.  D.  566;  Rev.  Ed. 
555.  Where  in  conflict  with  a  mineral  claim  it  may 
be  defeated  by  a  protest  and  proof  of  being  located 
on  mineral  land. — 4  L.  O.  3;  5  Id.  51.  But  see  further 
on  this  point  under  Ami  KM  CLAIM,  post  p.  477. 


SEVERANCE. 

Separation  of  Surface  and  Mineral  Estate. 

The  ownership  of  the  minerals  may  be  vested 
in  one,  while  the  ownership  of  the  surface  is  in  an- 
other. This  severance  is  often  created  by  deed,  in 
which  case  it  amounts  practically  to  a  partition  on  a 


SEVERANCE.  241 

horizontal  plane,  the  two  estates  being  entirely  sepa- 
rated, except  that  from  the  nature  of  the  case,  the 
surface  owner  can  usually  claim  the  right  of  support, 
while  the  mine  owner  can  claim  such  incidental  use 
of  the  surface  as  is  necessary  to  enable  him  to  win 
the  minerals. — Caldwell  v.  Fulton,  3  M.  R.  288;  31 
Pa.  475;  Homer  v.  Watson,  14  M.  R.  1;  19  Pa.  242; 
Marvin  v.  Brewster  Co.  13  M.  R.  40;  55  N.  Y.  588. 

When  minerals  are  so  severed  they  form  a  sepa- 
rate part  of  the  freehold  and  the  estate  is  not  a  mere 
easement. — Bonson  v.  Jones,  56  N.  W.  515;  McCon- 
nrll  v.  Pierce,  71  N.  E.  522;  Plummer  v.  Hill- 
tfcfc  ('<>.  to  fi  F.  208.  The  right  of  entry  on  sur- 
face cannot  be  enlarged  so  as  to  allow  the  erection 
of  coke  ovens — and  its  use  for  powder  house,  black- 
smith shop  and  supply  stores  depends  upon  the  cir- 
<u  instances  of  the  case  as  found  by  the  jury. — 
Williams  v.  Gibson,  16  M.  R.  248;  4  80.  850.  The 
mine  owner  may  erect  hoisting  plant. — Warden  v. 
Watson,  5  8.  W.  605. 

The  owner  of  the  coal  bed  has  the  right  to  re- 
move as  much  of  the  overlying  stratum  as  is  neces- 
to  work  the  coal,  and  the  right  to  use  the  space 
to  carry  foreign  coal  by  instroke — but  the  owner- 
ship ceases  upon  exhaustion  of  the  coal. — Moore  v. 
Indian  Camp  Co.  80  N.  E.  6. 

If  the  surface  owner  take  the  minerals  he  is  a 
trespasser. — Ashman  v.  Wigtont  12  Atl.  74. 

Where  there  has  been  a  severance  of  the  surface 
from  the  minerals  there  is  no  privity  between  the 
estates. — Hutchinson  v.  Kline,  49  Atl.  812;  and  their 
owners  are  not  tenants  in  common. — Virginia  Co.  v. 
l\riiy,  24  S.  E.  1021. 

Parol  evidence  is  not  admissible  that  a  deed  of 
all  coal  under  certain  lines  was  intended  to  be  lim- 
ited to  one  particular  vein. — King  v.  New  York  Co. 
54  Atl.  477. 

Mining  Under  Improvements. 

By  statute  in  Colorado  (R.  8.  Sec.  4213,  4217) 
the  mine  owner  is  bound  to  secure  the  owner  of  the 
surface  improvements  if  he  attempt  to  mine  under 


242  SEVERANCE. 

any  such  improvements.  Such  statutes  are  no  great 
departure  from  the  common  law  which  compels  each 
estate  to  be  enjoyed  with  proper  regard  to  the  rights 
of  the  sub-owner  or  superficial  owner  as  the  case 
may  be,  and  would  enjoin  mining  under  valuable 
improvements  if  irreparable  injury  were  threatened 
by  such  mining. 

Surface  Support. 

Where  the  estates  are  severed  the  surface  owner 
has  the  absolute  right  to  vertical  support. — You<il\- 
iogheny  Co.  v.  Hopkins,  21  M.  R.  188;  48  Atl.  /.'>. 
And  the  rulings  have  upheld  this  right  to  extreme 
lengths.  A  lease  to  mine  "all  the  coal"  does  not  give 
the  right  to  deprive  the  surface  of  support. — Mickle 
v.  Douglass,  17  M.  R.  137;  39  N.  W.  198.  But  the 
surface  owner  is  net  entitled  to  lateral  support. — 
Matulys  v.  Philadelphia  Co.  21  M.  R.  745;  ~><>  Atl. 

Instances  of  Severance. 

The  surface  and  the  subjacent  strata  are  rarely 
owned  by  separate  parties  on  the  western  slope  ex- 
cept where  placer  gold  or  lodes  have  been  discovered 
in  towns  before  entry  under  the  Town  Site  Acts;  or 
in  instances  where  conflicting  claims  have  been  com- 
promised by  deed,  one  party  taking  the  surface  and 
improvements,  the  other  the  veins  underneath. 

But  the  subject  is  important  in  the  Western 
States  chiefly  with  reference  to  the  question  of 
whether  claims  located  on  government  land  and 
claims  patented  by  the  government  take  both  surface 
and  minerals  in  all  cases,  or  whether  in  any  case 
there  is  an  actual  or  implied  severance  of  the  min- 
erals from  the  surface,  either  from  the  nature  of  the 
claim  or  from  the  language  of  patents  confirming  the 
claim. 

Patented  Claims  Generally. 

As  to  patented  claims  it  has  been  the  policy  of 
the  government  to  grant  the  entire  estate,  and  retain 
no  interest  with  the  patentee.  It  has  been  so  held  in 
the  case  of  a  Mexican  grant  confirmed  by  patent,  al- 


SBVBRANCE,  243 

though  under  the  original  grant  the  claimant  had 
;ved  no  title  to  the  mines  of  gold  and  silver  from 
tlie  Mexican  government.  It  was  considered  that 
the  confirmatory  patent  of  the  United  States  conveyed 
the  soil,  and  everything  under  the  soil,  and  that  if 
the  government  had  intended  to  reserve  the  royal 
metals,  as  the  Mexican  Republic  had  done,  it  should 
have  been  so  expressly  stated  in  the  patent. — Moore 
v.  Smaw,  12  M.  R.  418. 

In  Patents  to  Lode  Claims  Both  Surface  and  min- 
»-rals  are  conveyed  in  terms. 

Placer  Claim  Patents  Convey  not  only  the  placer 
deposits  and  the  surface,  but  also  all  veins  except 
those  known  to  exist  when  the  application  for  patent 
was  filed,  which  are  expressly  excepted. 

As  to  Mill  Site  Patents  It  Is  Required  That  such 
claims  be  located  on  non-mineral  land. 

But  aside  from  the  clause  referring  to  the  rights 
of  the  proprietors  of  lodes  dipping  underneath,  which 
is  common  to  all  classes  of  patents,  they  seem  to  be  a 
general  grant  of  the  land  which  they  enclose,  which 
grant  would  cover  all  lodes  and  mineral  rights. 

A  valid  lode  claim  overlying  the  ground  could 
have  protected  its  rights  by  an  adverse;  and  not  only 
do  the  general  rules  of  construction  favor  the  propo- 
sition that  a  mill  site  patent  conveys  all  lodes  ami 
deposits  found  within  its  lines,  but  the  government 
having  undertaken  to  decide  the  mineral  or  non- 
mineral  character  of  the  ground  before  the  patent 
issues  and  thereupon  to  issue  an  absolute  grant,  such 
grant  carries  both  the  soil  and  what  is  under  the  soil. 
Or  if  the  grant  is  not  considered  absolute,  owing  to 
the  reservation  of  lodes  which  penetrate  the  lines  of 
the  mill  site  on  the  strike,  which  has  been  sometimes 
inserted,  such  reservation  is  one  forced  into  the  paper 
without  legal  authority,  and  is  therefore  void. — See 
Davis  v.  Weibbold.  l.W  U.  N  507;  Gale  v.  Best,  18 
Col 


244  SEVERANCE. 

As  to  Patented  Agricultural  Claims  Obtained  in 
good  faith,  not  at  the  time  of  entry  known  to  be  min- 
eral land,  minerals  afterwards  discovered  certainly 
belong  to  the  patentee;  but  where  land  has  been  en- 
tered as  agricultural  upon  which  mineral  locations 
existed,  in  defiance  of  the  rights  of  mineral  claim 
ants,  such  patents  could  be  set  aside  as  against  the 
mineral  claimants  and  it  was  held  in  the  case  of 
Gold  Hill  Co.  v.  Ish.  5  Or.  104;  11  M.  If.  635,  that 
such  a  patent  was  absolutely  void  as  to  the  land  cov- 
ered by  the  mining  claim. 

A   patent,  however,  howsoever  procured,  usually 
operates  to  pass  title,  and  in  such  cases  the  holder 
should  be  declared  a  trustee  for  the  use  of  the  owner 
of  the  mine. — Salmon  v.  Symonds,  30  Cal.  51 
page  /;:.. 

Lodes  Dipping  Under  Patents. 

It  may  as  well  be  observed  under  this  head  that 
all  patents,  agricultural  as  well  as  mineral,  are  sup- 
posed to  contain  a  reservation  of  the  right  of  lodes 
apexing  outside  their  bounds,  to  dip  underneath  their 
lines.  See  page  /7<>. 

The  authority  to  insert  this  clause  in  agricul- 
tural patents  is  doubted  in  Patterson  v.  Oyli'n.  ?/ 
P.  W*. 

School  Lands. 

Section  16  of  each  township,  if  non-mineral, 
since  the  organization  of  the  Federal  Government, 
and  in  later  years,  Section  36,  and  in  some  States  ad- 
ditional sections,  have  been  reserved  from  sale  and 
granted  to  the  respective  States  upon  their  admis- 
sion, such  sections  in  the  Territories  being  held  by 
the  government  by  an  implied  trust  to  that  effect. — 
8  L.  D.  495.  The  words  of  grant  to  the  several 
States  are  not  uniform  but  in  general  the  title  passes 
upon  approval  of  the  survey. — 7  L.  D.  459;  9  Id.  408; 
Cooper  v.  Roberts,  18  How.  173. 

In  the  meantime  before  State  admission  and  un- 
til survey  they  are  open  to  discovery  of  mineral  and 


SEVERANCE.  245 

location  of  mineral  claims  upon  them  the  same  as 
upon  the  rest  of  the  public  domain. 

When  the  mineral  character  of  such  reserved 
sections  was  known  before  survey  the  title  to  no 
part  of  the  same  passes  to  the  State,  and  claims  may 
be  located  upon  them. — 5  L.  0.  178;  Heydenfeldt  v. 
hancy  Co.  93  U.  8.  6S4;  IS  M.  R.  204;  Ivanhoe  Co.  v. 
Keystone  Co.  13  M.  R.  214;  102  U.  S.  7<>7 

But  where  their  mineral  character  has  been  dis- 
covered since  they  were  surveyed,  such  subsequent 
discovery  of  mineral  will  not  divest  the  title  which 
has  already  passed. — 7  L.  D.  459;  9  Id.  408.  And  the 
States  have  control  of  their  sale  and  disposal.  Be- 
fore admission  as  a  State,  a  Territory  has  not  such 
control.— 4  L.  D.  390. 

By  Act  of  Congress  approved  April  2,  1884  (Sup. 
p.  4%4)i  Colorado  Is  reimbursed  for  school  sections 
lost  to  the  state  by  reason  of  their  mineral  charac- 
ter, and  similar  Acts  apply  to  other  States.  Loca- 
tions may  be  made  on  indemnity  sections  until  ap- 
proval.— 21  L.  D.  411;  29  L.  D.  181. 

Where  lands  are  mineral  at  date  of  the  reserva- 
tion they  do  not  pass  to  the  State  upon  the  subse- 
quent abandonment  of  the  mines. — Hermocilla  v. 
iiubMi.  M  />.  an. 

The  determination  of  non-mineral  character  by 
the  Land  Office  is  not  subject  to  collateral  attack. — 
Saunders  v.  La  Purisima  Co.  57  P. 

Patented  Town  Sites. 

In  this  case  there  is  an  express  severance  of 
the  minerals.  The  holder  of  the  lot  takes  no  title  to 
any  located  claims.  The  lot  is  subject  to  entry  to 
get  the  mines  of  gold  or  silver  which  it  may  con- 
tain.—R.  S.  §  2386,  2392. 

These  sections  are  supplemented,  if  not  supplied 
by  an  Act  approved  March  3,  1891,  as  follows: 

Reservation  of  Mineral  Rights  From  Town  Sites. 

Sec.  16. — That  town-site  entries  may  be  made  by 
incorporated  towns  and  cities  on  the  mineral  lands  of  the 
1'nlted  States,  but  no  title  shall  be  acquired  by  such  towns 
or  cities  to  any  vein  of  gold,  silver,  cinnabar,  copper,  or 


246  SEVERANCE. 

lead,  or  to  any  valid  raining  claim  or  possession   hold  under 
existing  law. 

When  mineral  veins  are  possessed  within  the  limits 
of  an  incorporated  town  or  city,  and  such  possession  is 
recognized  by  local  authority  or  by  the  l.-iws  nt  the  I'liiit-d 
States,  the  title  to  town  lots  shall  be  subject  to  such  r- 
nized  possession  and  the  necessary  use  thereof  and  when 
entry  has  been  made  or  patent  issued  for  such  town  sites 
to  such  incorporated  town  or  city,  tin-  possessor  of  such 
mineral  vein  may  enter  and  receive  patent  for  smh  mineral 
vein,  and  the  surface  ground  appertaining  thereto: 

Provided,  That  no  entry  shall  be  made  by  such  min- 
eral-vein claimant  for  surface  ground  when-  the  owner  or 
occupier  of  the  surface  ground  shall  have  had  possession  of 
the  same  before  the  inception  of  the  title  of  the  mineral- 
vein  applicant. — Sup.  p.  9J5. 

A  townsite  entry  under  the  above  act  must  con- 
form to  legal  subdivision  when  made  upon  surveyed 
lands,  as  required  by  R.  S.  Sec.  2389. — ,fcf  L.  D.  £f& 

The  town  patent,  where  valid  mining  locations 
have  been  made  within  its  limits,  does  not  grant 
the  minerals. — Moyle  v.  Bullene,  Jj.'t  P.  /;/';  .'<;  L.  D. 
1  '/'i :  .!',)  L.  D.  89.;  nor  where  the  land  was  known  to 
be  mineral  at  time  of  entry. — 21)  L.  D.  !-''< ':  .;/  Id.  88. 
Under  the  terms  of  the  second  paragraph  of  the 
present  Act,  it  seems  clear  that  lode  or  placer  pat- 
ents can  issue  for  such  claims  within  the  town  lim- 
its.— 25  L.  D.  518;  •  ;/  /</.  mt.  276.  If  the  mine  was 
located  after  the  occupation  of  the  surface  by  the 
lot  owner,  but  before  the  entry  of  the  town  site  for 
patent,  the  mines  and  surface  are  then  separate 
estates,  each  to  be  enjoyed  under  the  various  appli- 
cations of  the  maxim:  sic  utere  tuo  ut  alienum  imn 
laedas. — Smoke  House  Lode  Case,  I '.  /'.  858;  King 
v.  Thomas,  Id.  860;  Deffeback  v.  Hawke,  115  U.  8. 
392. 

Under  the  various  reservations  in  favor  of  mines 
out  of  town  site  patents,  under  the  Acts  in  force 
before  1891,  it  has  been  decided  that  discovery  of 
mineral  after  the  patent  issues  is  of  no  avail. — Tomb- 
stone T.  S.  Cases,  15  P.  26;  Lamed  v.  Jenkins.  I  l.i 
F.  63-'j.  That  a  location  not  valid  on  account  of  in- 
definite description  is  not  excluded. — Blackmore  v. 
Retily,  11  P.  12.  Nor  a  location  without  a  discov- 
ery.— Regan  v.  Whittaker,  85  N.  W.  863.  That  only 


SKVKKANCK.  L'JT 

tln>  lode,  and  not  its  surface,  is  excepted,  at  least 
under  patents  prior  to  1872.— Dower  v.  Richards,  ?-> 
Cal  477.  That  the  mine  must  have  been  a  known 
valuable  and  subsisting  claim. — Smith  v.  Hill,  26  P. 
*;;;.-  /></n.s-  i\  WeibboM.  t.in  r.  N.  507.  In  the  last 
case  it  was  also  held  that  a  reservation  in  a  mining 
patent  in  favor  of  a  lot  claimant  was  a  nullity  be- 
cause unauthorized.  A  lode  once  profitably  worked 
and  then  abandoned  is  not  excepted,  though  after 
ih»-  town  site  patent  issues  the  lode  is  found  to  be 
still  valuable. — Dower  r.  l'i<-hanls.  151  U.  S. 

The  rights  of  the  mine  owner  may  be  lost  by 
laches  or  neglect  to  keep  up  the  annual  labor. — 
Horsky  v.  Moran,  53  P.  1064;  Callahan  v.  James,  7/ 
P.  104. 

A  town  site  patent  under  R.  S.  §  2392  issued  in 
1877  did  not  convey  title  to  any  valid  claim.  The 
distinction  that  it  must  be  a  mine  of  value  does  not 
apply  to  patents  under  that  Act. — Callahan  v.  James, 
7  /  /'.  853. 

Doubtful  Policy  of  General  Reservations. 

Out  of  these  attempted  reservations  of  known 
lodes,  mines,  or  minerals,  by  general  terms  under 
the  Acts  providing  for  the  patenting  of  different 
classes  of  land,  only  trouble,  uncertainty  and  litiga- 
tion ensue;  the  holdings,  therefore,  are  usuallly 
strictly  against  them.  And  yet  the  fault  is  with  the 
government  attempting  to  protect  such  rights  by 
sweeping  clauses  instead  of  allowing  them  to  ad- 
verse or  to  come  in  as  co-applicants — the  mines  be- 
come abandoned  and  the  lot  owner  claims  the  whole 
estate,  or  they  become  of  sudden  value,  tempting  the 
miner  to  assert  more  than  his  rights.  The  same  ob- 
servations apply  with  greater  force  to  the  reserva- 
tion of  known  lodes  out  of  placers.  The  result  in 
either  case  is  that  the  surface  is  disposed  of,  while 
the  legal  title  to  the  minerals  remains  in  the  United 
States.  The  present  practice  is  to  allow  an  overlap- 
ping patent  to  the  mineral  claimant  under  certain 
conditions.— 25  L.  D.  518;  29  Id.  89;  426.  Before  the 
decision  in  the  South  Star  case,  cited  p.  226,  the  de- 


248  STATE  LANDS. 

partment  had  required  the  surface  patent  to  be  set 
aside   before   they   would    take   action. — Pike's   Peak 
Lode,  10  L.  D.  200;  Protector  Lode,  12  L.  D.  662. 
Unpatented  Claims. 

A  lode  claim  covers  the  entire  surface  as  well 
as  the  veins  within  it.  Before  the  passage  of  the 
Mining  Acts,  it  had  been  held  (Brown  v.  49  Co.  9 
M.  R.  600)  that  a  lode  location  also  included  float 
gold  below  its  apex,  which  had  evidently  come  from 
that  particular  vein.  It  is  evident,  from  the  Con- 
gressional grant  of  the  surface  without  excepting 
any  form  of  deposit,  that  a  lode  location  made  in 
good  faith  upon  an  ore-producing  vein,  without  the 
aid  of  any  such  decision,  would  include  placer  de- 
posits within  its  lines  both  above  and  below  the 
vein. 

But  an  unpatented  placer  claim  covers  no  lodes, 
and  a  lode  claim  may  be  located  across  it.  If  the 
holder  of  such  claim  discover  mineral  upon  it  he 
should  stake  and  record  the  same,  as  a  lode  claim, 
and  he  has  the  same  right  as  a  Stranger  so  to  do, 
if  he  be  the  first  to  disclose  such  mineral  value. — • 
McCarthy  v.  Speed,  77  N.  W.  590.  An  unpatented 
town  site  or  ranch  claim,  does  not  include  either 
veins  or  deposits  of  gold  or  silver. 

Where 'land  has  been  returned  as  agricultural 
the  discovery  and  formal  location  of  a  lode  or  placer 
deposit  over  the  same,  shifts  the  presumption  to 
one  in  favor  of  the  mineral  claimant. — 21  L.  D.  r»o>. 


STATE  LANDS. 


In  Nevada  and  Wyoming  the  State  Lands  are  by 
statute  open  to  prospectors.  The  State  Patent  does 
not  pass  mines  claimed  under  the  Act. — Stanley  v. 
Mineral  Union,  63  P.  59;  26  Nev.  55. 

By  Colorado  Act  of  1905  (R.  S.  §  521k)  prospect- 
ors discovering  mineral  on  State  Lands  are  allowed 
to  pre-empt  a  claim  1,500  by  300  feet  whether  lode 


TUNNEL  SITES.  249 

or  placer  and  ultimately  to  obtain  the  State's  Title 
to  the  same  at  a  minimum  price  of  $10  per  acre. 

LOCATION     NOTICE    ON     STATE     LAND. 

I  claim  the  Admiral  lode  (or  placer)  discovered  by 
me  on  State  land,  1,500  by  300  feet,  750  feet  easterly  and 
750  feet  westerly  from  this  point,  as  staked  on  the  ground 
this  14th  day  of  July,  I'.X'T. 

Louis  M.  PETITDIDIER. 

The  above  notice  holds  the  claim  for  90  days 
during  which  time  the  discoverer  must  do  $100  as- 
sessment work  and  stake  the  claim  and  file  a  Loca- 
tion Certificate  with  the  State  Board  of  Land  Com- 
missioners and  within  one  year  must  apply  to  the 
Board  for  either  Lease  or  Deed.  The  forms  on  pp. 
75  and  218  will  suffice  for  Location  Certificates  and 
no  record  at  all  is  required  in  the  County  Recorder's 
office. 


TUNNEL  SITES. 


Line  of  Tunnel — Neglect  to  Work  for  Six  Months. 

K.  s.  S«T.  2323. — Where  a  tunnel  Is  run  for  the  de- 
velopment of  a  vein  or  lode,  or  for  the  discovery  of  mines, 
the  owners  of  such  tunnel  shall  have  the  right  of  possession 
of  all  veins  or  lodes  within  three  thousand  feet  from  the 
face  of  such  tunnel  on  the  line  thereof,  not  previously 
known  to  exist,  discovered  in  such  tunnel,  to  the  same  ex- 
tent as  if  discovered  from  the  surface ;  and  locations  on  the 
line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the 
surface,  made  by  other  parties  after  the  commencement  of 
the  tunnel,  and  while  the  same  is  being  prosecuted  with 
reasonable  diligence,  shall  be  invalid ;  but  failure  to  pros- 
ecute the  work  on  the  tunnel  for  six  months  shall  be  con- 
sidered as  an  abandonment  of  the  right  to  all  undiscovered 
veins  on  the  line  of  such  tunnel. — Sec.  k,  A.  C.  May  10,1872. 

Record. 

R.  S.  Colo.  Sec.  4207. — If  any  person  or  persons  shall 
locate  a  tunnel  claim  for  the  purpose  of  discovery,  he  shall 
record  the  same,  specifying  the  place  of  commencement 
and  termination  thereof,  with  the  names  of  the  parties  in- 
terested therein. — Nov.  7,  1861. 


250  TUNNEL  SITES. 

Line  of  Tunnel. 

Immediately,  upon  the  passage  of  the  mining  Act 
of  1872,  containing  the  tunnel  section  above  printed, 
controversy  arose  as  to  what  was  meant  by  the 
words  "the  line  thereof." 

The  Land  Office  shortly  published  their  con- 
struction that  it  meant  "the  width  thereof  and  no 
more."  This  construction  was  adopted  in  the  case 
of  Corning  Tunnel  Co.  v.  Pell,  14  M.  R.  612;  4  Colo. 
•101'.  This  became  the  generally  received  interpreta- 
tion of  the  act  until  the  case  of  Enterprise  Co.  v. 
Rico  Aspen  Co.  66  F.  200,  affirmed  by  the  National 
Supreme  Court  in  1897,  167  U.  8.  10* ;  followed  by 
the  case  of  Campbell  v.  Ellet,  167  U.  8.  Jl<>,  affirming 
18  Colo.  511. 

The  court  holds  that  a  tunnel  duly  located  and 
its  work  diligently  prosecuted  has  the  right  to  all 
lodes  not  previously  known  to  exist,  on  either  side 
of  the  bore.  That  is  to  say,  when  a  lode  is  reached 
the  tunnel  may  elect  to  take  1,500  feet  in  one  direc- 
tion or  1.500  feet  on  the  other  side  or  may  divide 
the  length,  so  much  on  either  side.  That  all  loca- 
tions on  lodes  not  previously  known,  made  within 
such  area  are  voidable  at  the  election  of  the  owner 
of  the  tunnel. 

Location  and  Record  of  Tunnel  Site. 

The  following  form  has  been  drawn  in  attempted 
compliance  with  the  Act  of  Congress,  the  Land  Of- 
fice regulations  and  the  construction  given  to  the 
act  by  the  Rico-Aspen  case. 

It  purports  to  claim  its  entire  frontage  of  3,000 
feet  as  its  line  of  tunnel,  and  if  the  Rico-Aspen  case 
stands  in  its  entirety,  the  claimant  is  in  position  to 
assert  his  full  rights  under  such  form.  But  the  Rico- 
Aspen  case  in  principle  cannot  be  reconciled  with  the 
Erhardt-Boaro  case,  15  M.  R.  472;  113  U.  S.  527.  There 
the  prospector  by  his  notice  had  an  inchoate  right  to 
his  lode  just  discovered;  such  notice  not  specifying 
the  extent  of  his  claim,  he  was  limited  in  his  right 
of  selection  to  750  feet  on  each  side  of  his  point  of 


TUNNEL  SITES.  - :-M 

discovery.  This  discord  as  to  the  two  classes  of 
claims  still  existing,  we  advise  that  it  is  safer  for 
tht»  tuniu'l  rlainuint  to  elect  at  the  outstart  to  take 
750  feet  on  each  side,  or  some  other  definite  number 
of  feet  on  each  side,  of  the  bore  of  his  proposed 
tunnel. 

iricAii:    DI    TI  NM:I.. 

T..   M.I.  WH..M   mi  ,;s   MAY   COKCntN:     Know 

ye.  that  I.  ir.  /:.  Henthaw.  a  citizen  of  the  rnited  States, 
•  .f  hlaho  N/H-UM/.V.  <'"unty  «»f  rh;ir  r  ;•«/,-.  State  of  Colorado, 
do  heret.y  declare  and  publish  ns  a  legal  notice  to  all  the 
world  that  I  have  a  valid  right  to  the  occupancy,  possession 
and  enjoyment  of  Tin:  MAI:  \M»  'l'i  \\i:i.  Sin:. 

located  .f'annaru  "ml.  A.  I ».  /!'">•.  for  the  discovery  of  mines 
and  th»-  development  of  lodes,  and  situate  in  Griffith  Mining 
I>istrict.  char  Creek  County,  State  of  Colorado,  described 
as  follows,  to  \ 

Month    of    tunnel    situate    on    north    slope    of    l.mrrn 
'  h     mountain;    from     tin     month     of    the     tuntul.    rnlrirt 
nmhr    thr    mi<l,lh     trrtrk    of    //<• 

i.,a,iriii,    ifuiiroiiii  bear*   \     /7D  ,t8'  W.  .ij  ••    Wo.  '•' 

iwrveg   lot    \/,.    ;•;/;/;.      I. ion    >»,u    *>f,    bemrt    \.   ?.t°   45'   W. 

>•/».  nnnn 
mniintuin    >„  .,,  ,     \      : :      :,:,'    \\ 

Si/«-   of    MIIIIH  '  •/.     /.;/   7    f»  <  I    liii/li    in    tin    •/,,//•. 

fours.'  of  ttiini.-l  fn.iu  its  month  8.  17°  58'  E.  3,000 
fi*t  to  tin  xoiitli  i  ml  of  *<//»/  t  mi  in  I .  n '  nliirh  jinint  It 
11  \uo*tmi  t  i'tl  xto-ki  .  In  inn  tin  >  ml  *  /<//.'»,  uml  Ixhrrrn  f  n  n  tn  I 
mouth  uml  t  ml  >/'//..  tin  <•<  nt<  r  linr  of  tin  tinim  I  is  nnirknl 
'  nml  njHA  f«  t  fro;,,  tin-  month 
on  /  .mil  iinirkfi  t !••<*..  From  the 

>  ml     .s/'/A.       I,'- iml.li,  .1,1     mountain     l»  »/rx     Y.     40°     IV.  .     Sn.rnn 
mountain    hrar*   N.  S9°    V'    /      '    "    ^'""/'    •'    imln*    in    tliannhr 
mark.,/      I!     I     J    II 
.',    imln.«    in    iliiinn  t.  r    mark,, I      II.    T.    if     /.'.    'I."    b«Ofi     V.    J.l° 

,.'  ,  mi   itofttf,  tei  a  ttofe  V.  7«°  2..'1 

,1    ,  ml    »tak<     x.  t    a  :  '       .'.."     ir. 

from    ,,»o,/f/i    o/    M/IIM^    x.  t    a    st.il:,      \ 
^rom    month    of    tnnml    *,  t    a    staler    8.   7«°    22'    W. 
:    winch    last    four    mentioned    stakes    are    at    the 
exterior    corners    (.f    tli«>    claim    of    said    tunnel    site. 

And  I  claim  for  line  of  tunnel  1,500  feet  on  each 
side  of  the  (enter  of  the  bore  or  course  of  the  tunnel,  and 
the  right  to  I..-.IHI  feet  on  each  and  every  lode  which  may 
he  discovered  in  the  due  prosecution  of  said  tunnel.* 

Together  with  all  and  singular  the  heriditaments 
and  appurtenances  thereunto  Itelmiging  or  in  anywise  ap 
pertainini:.  and  all  rights  granted  to  the  locator  as  tunnel 
rights  under  the  terms  of  section  L'::ij::  of  the  Revised  Stat- 
utes of  the  United  States. 

Witness  my  hand  and  seal  this  ^mi  day  of  January, 
A.  D.  \v.  i:.  KENS  HAW.  [SEAL.] 


252  TUNNEL  SITES. 

STATE  OP  COLORADO,  City  and  County  of  Denver:  ss. 

Before  me,  the  subscriber,  a  notary  public  in  and 
for  said  county,  personally  appeared  W.  E.  Renshaw,  to  me 
personally  known  to  be  the  same  person  described  in  and 
\vho  executed  the  within  declaration  of  occupation  ;m<I 
acknowledged  that  he  signed,  sealed  and  published  tlu« 
same  as  his  free  and  voluntary  act  and  deed  for  the  uses 
and  purposes  therein  set  forth. 

Witness  my  hand  and  notarial  seal  this  22nd  day  of 
January,  A.  D.  1908.  Arthur  R.  Morrison, 

[SEAL.]  Notary  Public. 

STATE  OP  COLORADO,  City  and  County  of  Denver:  ss. 

W.  E.  Renshaw,  of  the  County  of  Clear  Creek,  State 
of  Colorado,  being  first  duly  sworn  according  to  law  de- 
poses and  says  :  That  he  is  a  citizen  of  the  United  States 
over  the  age  of  21  years;  that  he  is  the  owner  by  pre- 
emption, location  and  occupation  of  the  foregoing  tunm-l 
site,  the  said  tunnel  being  prosecuted  for  the  development 
of  lodes  belonging  to  said  affiant;  also  for  the  discovery 
of  other  lodes ;  affiant  further  says  that  he  has  expended 
in  actual  work  and  improvements  on  said  tunnel  not  less 
than  forty  thousand  dollars,  and  that  said  tunnel  has  been 
already  run  the  distance  of  1,000  feet,  and  that  it  is  bona 
fnl<'  his  intention  to  prosecute  work  on  said  tunnel  so  lo- 
ratcd  and  described  with  reasonable  diligence  for  the  pur- 
poses therein  set  forth.  \v.  l.  RBN8HAW. 

Subscribed  and  sworn  to  before  me  this  22nd  day  of 
January,  A.  D.  1908.  Arthur  R.  Morrison, 

[SEAL.]  Notary    1'uMic.     . 

Before  recording  place  at   the  mouth  of  tunnel 
the 

LQCATK-N     N'-T  HT. 

The  Hall  Tunnel  and  Tunnel  Site,  located  this  .///»i- 
;/a»-//  22nd,  1906,  by  \v .  I'.  Btfwfenr.  CourM  s.  17  :',v  B, 
:*,ooo  feet  to  end  post,  from  which  end  post  Republican 
mountain  bears  N.  40°  W.,  Saxon  mountain  bears  N.  39° 
40'  E.,  stump  9  inches  diameter  marked  "B.  T.  &  H.  T." 
bears  S.  86°  15'  W.  18.4  feet. 

Height  of  tunnel   7   feet,  width   8  feet. 

I  claim  1,500  feet  on  all  lodes  to  be  discovered  in 
this  tunnel  and  not  previously  known  to  exist,  on  either 
side  of  tunnel  as  staked  on  the  ground.* 

W.    K.    HKNSHAW. 

IH    MI-    I.nCATInN. 

If  ground  for  a  dump  is  claimed,  add,  in  the  lo- 
cation certificate  after  the*: 

"I  also  claim  a  square  tract  of  land  125  feet  on  each 
side  of  the  mouth  of  tunnel  and  extending  250  feet  imme- 
diately below  the  mouth  of  the  tunnel,  as  staked  upon  the 
ground,  for  dumping  purposes." 


TUNNEL  SITES.  253 

And  to  the  notice  after  the*  add: 
••Inunp    •_'.">(>   feet   square  as   stnk«Ml." 

The  actual  location,  of  course,  consists  in  setting 
the  stakes  as  called  for  in  such  notices,  and  in  the 
starting  the  tunnel  in  good  faith. 

Location  of  Lodes  Cut  in  a  Tunnel. 

They  should  be  staked  and  recorded  exactly  as 
in  the  case  of  lodes  discovered  at  the  surface,  except 
that  no  discovery  shaft  is  required — the  discovery  in 
the  tunnel  taking  its  place — and  the  location  stake 
or  notice  should  be  set  on  the  surface  at  a  point 
midway  between  side  lines  and  above  the  discovery 
in  the  tunnel.  Such  location  notice,  as  well  as  the 
location  certificate,  should  state  the  fact  that  the 
lode  was  discovered  in  the  tunnel  and  the  number 
of  feet  in  from  the  mouth.  In  fixing  the  surface 
line,  approximate  calculations  should  be  made  for 
the  dip.  In  Ellet  v.  Campbell,  18  Colo.  510,  affirmed 
/<•:  U.  8.  116,  it  was  held  that  the  discovery  need  not 
be  followed  by  location;  but  the  U.  S.  Supreme  Court 
conceded  that  it  might  be  required  before  patent 
could  be  secured. 

"A  Tunnel  is  not  a  Mining  Claim  although  it 
has  sometimes  been  inaccurately  called  one." — Creede 
Co.  v.  Uinta  Co.  196  U.  8.  381.  In  that  case  it  is 
expressly  held  that  the  Tunnel  is  a  means  of  explora- 
tion "In  the  hope  of  finding  a  mineral  vein.  When 
one  is  found  he  (the  tunnel  owner)  is  called  upon 
to  make  a  location  of  the  ground  containing  that 
vein  and  thus  creates  a  mining  claim  the  protection 
of  which  may  require  adverse  proceedings." 

We  never  could  conceive  that,  as  might  be  in- 
ferred from  the  Ellet  case,  a  discovery  In  a  tunnel 
would  hold  indefinitely  without  defining  the  surface 
lines  of  the  claim  and  the  ruling  above  cited  from  the 
Creede  Case  by  the  National  Supreme  Court  sets  the 
matter  at  rest. 

Under  this  decision  as  we  understand  it  the  dis- 
coverer by  tunnel  has  no  greater  rights  than  one 
who  finds  the  lo<Je  on  the  surface  and  after  dis- 


254  TUNNEL  SITES. 

covery  so  made  has  no  greater  time  than  any  other 
discoverer  to  fix  the  length,  width  and  surface  lines 
which  he  will  choose  to  enclose  and  protect  his  dis- 
covery. 

In  Brewster  v.  Shoemaker,  63  P.  30!) .  the  lode 
was  cut  250  feet  below  the  surface  in  an  unrecorded 
cross-cut.  The  dip  was  calculated  to  the  surface 
and  discovery  notice  posted  on  the  center  line,  refer- 
ring to  the  discovery  in  the  tunnel  and  the  claim 
was  staked  and  recorded.  Held  that  the  location 
was  valid  and  that  no  proving  up  between  surface 
and  the  tunnel  was  required.  The  case  holds  also 
that  the  fact  that  the  tunnel  had  been  driven  across 
patented  ground  belonging  to  strangers  was  not  a 
point  which  could  be  raised  by  third  parties. 

The  Right  to  Penetrate  Under  Other  Lands. 

The  trespass  of  a  tunnel  cutting  through  country 
rock  across  a  claim  at  great  depth  is  not  of  that 
(lass  denominated  as  destructive  or  irreparable,  but 
it  opens  a  private  back  door  to  the  miners  under- 
ground wraith,  and  it  may  be  enjoined  because  its 
completion  would  ultimately  ripen  into  an  easement. 
If i< -hards  v.  Dower,  64  Cal.  f/J;  or  if  it  claims  the 
right  to  take  the  ore. — Stratton  v.  Gold  Sov.  Co.  1 
Mills'  Leg.  Adv.  350. 

Applying  the  theory  that  every  surface  claim- 
ant owns  to  the  center  of  the  earth,  no  man  has  a 
right  to  drive  a  tunnel  underneath  the  property  of 
another  without  his  license  or  consent.  Such  right 
may  exist  by  district  rule  (Bliss  v.  Kingdom,  41  Cal. 
<>~>l),  but  without  any  specific  rule  tunnels  were  con- 
stantly driven  across  prior  claims  without  much 
question,  until  the  Rico-Aspen  decision  and  its  sweep- 
ing concessions  to  tunnel  sites  compelled  miners  in 
self  defense  to  check  their  encroachments.  The  decis- 
ions are  uniform  that  in  the  absence  of  statute  or 
district  rule,  a  tunnel  has  no  implied  right  or  li- 
cense to  penetrate  under  prior  patents  or  locations. 
—Richards  v.  Dower,  64  Cal.  62;  73  Cal.  477;  Ama- 
dor  Co.  v.  Deioitt,  73  Cal.  482;  Calhoun  Co.  v.  Ajax 
Co.  182  U.  8.  499. 


TUNNEL  SITES.  255 

A  party  has  no  right  to  tunnel  through  another's 
patented  ground  to  cut  a  vein  whose  apex  is  within 
his  own  patented  lines. — St.  Louis  Co.  v.  Montana 
Co.  113  F.  900. 

The  Colorado  Tunnel  Acts — Eminent  Domain. 

A  Colorado  act  of  1861  gave  a  discovery  tunnel 
the  "right  of  way  th rough  all  lodes  which  may  lie 
on  its  course."  The  act  of  1897  enlarged  this  per- 
mission, and  further  provided  for  right  of  inspec- 
tion to  the  owner  whose  lode  was  cut,  and  placed 
the  burden  of  proof  on  the  question  of  lode  identity 
on  the  tunnel.  Both  these  acts,  in  Cone  v.  Roxanna 
Co.  (HALLETT,  J.  MS.),  were  held  void  (1)  as  to  tun- 
nel crossing  prior  location,  because  no  provision  was 
made  for  compensation,  and  (2)  because  not  within 
the  terms  of  A.  C.  Sec.  2.?.?N.  allowing  the  states  to 
legislate  concerning  easements.  This  same  point  (2) 
was  rultMl  in  Calhoun  Co.  v.  Ajax  Co.  »9  P.  617 
(affd.  182  U.  8.  50!)),  the  case  making  no  reference 
to  the  1897  act,  but  its  tenor  would  be  against  the 
validity  of  the  act  as  a  license  to  penetrate  either  a 
prior  or  a  later  claim. 

The  Colorado  act  of  1891  (R.  S.  *  2461)  giv- 
ing tunnels  the  right  to  condemn  a  right  of  way 
was  sustained  in  Tanner  v.  Treasury  Co.  83  P.  .Jf>'/. 
so  there  can  be  no  doubt  of  the  validity  of  the  later 
and  more  specific  act  <>i  L907  (R  S.  8  2435).  The 
Idaho  act  on  the  same  subject  was  held  valid  in 
HailUe  v.  Larson,  138  F.  111. 

By  the  Colorado  act  of  1907  power  is  given  to 
condemn  a  right  of  way  to  any  tunnel  company  of- 
fering itself  as  a  common  carrier  of  ores.  It  must 
file  with  the  county  recorder  a  map  of  its  survey, 
allow  inspection  to  owners  of  all  veins  which  it  cuts, 
and  transport  their  ore  and  waste  at  fixed  charges. 

Where  the  tunnel  has  already  been  driven 
through  the  claim,  it  seems  that  ejectment  is  the 
proper  remedy,  and  not  injunction. — Creede  Co.  v. 
Uinta  Co.  HALLETT,  J.  MS. 


256  TUNNEL  SITES. 

Unrecorded  Tunnels. 

Any  party  running  a  tunnel  would  probably  hold 
the  tunnel  itself  (i.  e.  the  bore  as  far  as  actually 
run),  without  any  record  whatever. — 8  L.  0.  71. 
This  is  done  every  day  in  the  case  of  cross-cuts, 
which  are  simply  tunnels  on  a  small  scale.  But  to 
claim  any  rights  for  its  line  or  otherwise  under  the 
Act  of  Congress  it  must  be  staked  and  recorded. 

Of  course,  a  lode  discovered  in  a  tunnel,  after  the 
lode  has  been  duly  located  and  recorded  on  the  tunnel 
discovery  is  as  valid  upon  an  unrecorded  as  upon  a 
recorded  tunnel,  its  title  having  by  such  independent 
location  become  a  matter  wholly  apart  from  the  tun- 
nel location. 

Failure  to  Work. 

The  right  to  blind  lodes  is  conditioned  upon 
prosecuting  work  with  "reasonable  diligence."  In 
the  Rico-Aspen  case,  66  'F.  206,  the  court  intimates 
that  this  clause  should  receive  a  strict  construction, 
and  that  prompt  and  energetic  prosecution  of  the 
work  should  be  required. 

Failure  to  work  for  six  months  deprives  the  Tun- 
nel Site  of  its  claim  to  blind  lodes,  but  does  not  affect 
its  right  to  continue  its  bore  through  claims  in  ad- 
vance of  it.— Fissure  Co.  v.  Old  Susan  Co.  63  P.  587. 

Abandonment. 

A  tunnel  may,  like  any  other  kind  of  claim,  be 
abandoned;  but  neglect  to  work  does  not  operate  to 
effect  an  abandonment;  such  neglect  only  operates  to 
deprive  it  of  tunnel  rights  along  its  line.  The  fact 
that  no  labor  has  been  done  for  many  years  is  evi- 
dence of  abandonment,  but  not  conclusive.  As  be- 
fore stated  (page  00)  abandonment  is  a  question  of 
fact,  and  in  the  case  of  tunnels  is  wholly  independ- 
ent of  the  annual  labor. 

Patent — Adverse  Claim. 

There  is  no  provision  for  patenting  a  tunnel  site. 
Nor  does  it  need  to  protect  itself  by  adverse  against 


TUNNEL  SITES.  257 

an  application  for  patent  on  a  survey  across  its  line 
in  advance  of  its  breast*  If  such  Survey  cover  blind 
lodes  not  yet  cut  in  the  tunnel  the  tunnel  rights  to 
the  same  are  saved  under  the  ruling  in  the  Rico- 
Aspen  case.  And  as  to  its  right  to  bore  through 
such  patented  Survey  its  easement  is  saved  without 
necessity  of  adverse  or  suit  under  the  authoritative 
decision  in  Creede  Co.  v.  Uinta  Co.  supra. 

A  lode  recorded  on  a  Tunnel  Discovery  adverses 
of  course  on  its  own  merits  as  a  lode  location,  but 
its  discovery  would  on  proper  facts  relate  back  to 
the  date  of  the  location  of  the  Tunnel  Site. 

But  in  29  L.  D.  2S5,  a  tunnel  having  adversed 
a  lode  application,  the  application  was  held  stayed 
until  the  determination  of  the  supporting  suit:  and 
the  case  suggests  the  necessity  of  an  adverse  claim 
to  protect  its  dump  ground,  if  surveyed  in. 

Annual  Labor  by  Tunnel. 

Sec.  1. — That  section  two  thousand  three  hundred 
and  twenty-four  of  the  Revised  Statutes,  be,  and  the  same 
is  hereby,  amended  so  that  where  a  person  or  company  has 
or  may  run  a  tunnel  for  the  purposes  of  developing  a  lode 
or  lodes,  owned  by  said  person  or  company,  the  money  so 
expended  in  said  tunnel  shall  be  taken  and  considered  as 
expended  on  said  lode  or  lodes,  whether  located  prior  to 
or  since  the  passage  of  said  act ;  and  such  person  or  com- 
pany shall  not  be  required  to  perform  work  on  the  surface 
of  said  lode  or  lodes  in  order  to  hold  the  same  as  required 
by  said  act. — Feb.  11,  1875,  Sup.  p.  &. 

The  annual  labor  of  $100  on  each  claim  may  be 
performed  under  the  above  section  by  work  done  on  a 
tunnel,  cutting,  or  which  is  driven  to  cut,  such 
claims.— 5  L.  0.  5;  Id.  S4;  17  L.  D.  190. 

To  apply  tunnel  work  it  is  no  objection  that  the 
tunnel  runs  through  -vacant  ground  or  crosses  lodes 
belonging  to  others  before  it  reaches  a  point  where 
it  would  tend  to  develop  the  claim. — Hain  v.  Mattes, 
84  Colo.  S45;  83  P.  127. 

The  Patent  Expenditures  of  $500  may  also  be 
made  on  such  tunnel. — 4  L.  0.  67.  A  party  may  pat- 
ent one  lode  on  the  line  of  his  tunnel  for  each  $500 

9 


258  TAXATION. 

of  labor  spent  in  driving  the  tunnel. — 30  L.  D.  510. 
All  claims  in  a  group  must  share  equally  in  the  ex- 
penditure on  the  tunnel. — 35  L.  D.  361. 

Tunnels  Over  3,000  Feet  Long. 

The  A.  C.  expressly  limits  the  claim  of  a  tunnel 
site  to  lodes  not  known  to  exist  "within  three  thou- 
sand feet  from  the  face  of  such  tunnel."  Attempts 
have  been  made  to  evade  this  limitation  by  filing  rec- 
ords of  a  second  tunnel  to  begin  at  a  point  3,000  feet 
in  from  the  mouth  of  the  tunnel  projected  from  the 
surface;  i.  e.,  to  begin  at  the  end  of  the  first  3,000 
feet,  taking  3,000  feet  more  and  even  third  and  fourth 
extensions  have  been  so  recorded. 

We  regard  these  locations  as  absolutely  void. 
But  we  draw  the  distinction  between  the  right  of  a 
tunnel  to  undiscovered  lodes  and  its  right  to  bore 
through  the  mountain.  The  former  is  granted  by 
Act  of  Congress,  is  limited  by  its  terms  and  cannot 
be  enlarged.  The  latter,  the  right  to  bore,  is  a  mere 
easement,  exercised  under  district  rules  before  the 
Act,  and  there  is  no  limitation  on  the  claim  of  a  tun- 
nel to  drive  itself  through  the  public  domain  as  far 
as  its  owners  may  desire  to  penetrate. 

A  tunnel  in  its  record  therefore,  in  our  opinion, 
can  claim  a  right  of  way  to  drive  to  any  expressed 
number  of  feet,  but  it  cannot  claim  the  statutory 
tunnel  right  to  blind  lodes  beyond  the  first  3,000  feet; 
and  the  location  of  a  second  tunnel  from  the  breast 
of  the  first  is  an  attempt  by  a  self-serving  act  to 
take  from  the  prospector's  rights  in  the  ground  be- 
yond 3,000  feet  a  valuable  privilege,  which  the  Act  of 
Congress  has  given  him. 


TAXATION. 


By  the  Colorado  Revenue  Act,  R.  S.  Sec.  5575, 
mining  claims  are  required  to  be  listed  by  the  name, 
and  number  of  Survey  Lot,  when  patented  or  entered 
for  patent. 

Mines  are  divided  into  two  classes — producing 
and  non-producing.  A  gross  output  of  $5,000  places 


TAXATIpN.  259 

the  mine  in  the  first  class,  and  it  is  to  be  assessed  at 
one-fourth  of  its  gross  output.  If  the  net  output 
shows  a  profit  of  more  than  a  fourth,  such  net  out- 
put is  to  be  the  valuation.  Non-producing  mines  are 
to  be  assessed  like  other  real  estate,  at  their  sup- 
posed actual  value.  Special  provisions  are  made  for 
taxation  of  group  claims  and  tunnel  sites. 

The  owner  is  required  to  make  return  showing 
the  tonnage,  freight  and  mill  returns,  as  stated  in  de- 
tail in  the  Act.  §§  5617,  5627. 

For  construction  of  similar  act  of  1887  see  Pil- 
grim Co.  v.  Teller  County,  76  P.  864. 

Possessory  Title  Taxable. 

The  estate  in  unpatented  mining  claims  Is  prop- 
erty subject  to  the  right  of  taxation. — Forbes  v. 
Gracey,  94  U.  8.  762;  14  M.  R.  188;  Seymour  v.  Fisher, 
16  Colo.  188.  Notwithstanding  the  above  declaration 
of  taxable  status  the  possessory  title  has  not,  as  a 
rule,  been  assessed,  though  taxes  have  always  been 
levied  on  the  surface  improvements  when  extensive. 
Patented  Claims,  or  those  entered  for  patent,  are 
of  course  assessed  and  taxed  as  other  classes  of  real 
•ite.  In  Nevada,  and  other  states,  attempts,  at- 
tended with  continued  litigation,  have  been  made  to 
tax  the  not  output.  Such  tax,  so  plausible  in  theory, 
is  unjust  and  grossly  unequal  after  conceding  the 
fact  that  absolutely  equal  taxation  cannot  be  realized 
upon  any  theory  of  assessment.  See  Mercur  Co.  v. 
Spry,  52  P.  S82,  construing  the  Utah  law  of  this 
character.  Net  proceeds  of  coal  mines  held  taxable 
in  Montana. — Montana  Co.  v.  Livingston,  52  P.  780. 

Special  Instances. 

A  mine  cannot  be  sold  for  tax  assessed  against 
improvements  not  found  on  the  mining  ground. — 
Knox  v.  Higby,  18  P.  S81. 

Exemption  as  mining  claim  ceases  when  placer 
ground  is  laid  out  into  town  lots. — Dyke  v.  Whyte, 
29  P.  128. 

Where  surface  and  minerals  are  separately 
owned  they  may  be  separately  taxed. — Cons.  Coal 


260  LIENS,  JUDGMENTS,  MORTGAGES. 

Co.  v.  Baker,  26  N.  E.  651;  Stuart  v.  Com.  23  8.  W. 
367. 

The  number  of  the  Survey  Lot,  in  Colorado,  is  an 
essential  part  of  the  description  in  a  Tax  deed. — 
Hammon  v.  Nix,  10 If  F.  689. 


LIENS,  JUDGMENTS,  MORTGAGES. 
How  Affected  by  Patent. 

R.  S.  Sec.  2332.—  *  *  •  Nothing  in  this  chap- 
ter shall  be  deemed  to  impair  any  lien  which  may  have  at- 
tached in  any  way  whatever  to  any  mining-claim  or  prop- 
erty thereto  attached  prior  to  the  issuance  of  a  patent. — 
Bee.  13,  A.  O.  July  9f  1870. 

Patent,  although  relieving  claims  from  adverse 
rights,  does  not  relieve  from  liens  already  attached 
against  the  property.  On  the  other  hand,  the  pat- 
ented title  enures  to  the  benefit  of  the  lien  holder. — 
Butte  Co.  v.  Frank,  65  P.  1. 

Judgments  are  liens  for  the  period  limited  by 
statute  in  each  State,  usually  six  years,  the  time  run- 
ning either  from  the  date  of  judgment  or  the  date 
of  filing  the  transcript  in  the  Recorder's  office. 

A  mortgage  'may  be  so  drawn  as  to  secure  ex- 
penses of  mining  as  well  as  the  original  debt. — Char- 
ter Oak  Co.  v.  Stephens,  15  P.  253.  In  exceptional 
instances  a  miner's  lien  has  been  held  to  cut  out 
a  prior  mortgage.  Atlantic  Co.  v.  Ropes  Co.  77  N. 
W.  938;  Galloway  v.  Blue  Spgs.  Co.  37  S.  W.  1016,  but 
as  a  general  rule  the  mortgage  takes  precedence  of  all 
debts  incurred  by  the  further  working  of  the  mine. 
The  lien  of  neither  mortgage,  judgment  nor  attach- 
ment, prevents  the  operation  of  the  mine  without  an 
injunction  for  the  protection  of  the  security — and 
such  injunction  will  be  granted  only  in  exceptional 
instances. — Vervalen  v.  Older,  8  N.  J.  Eq.  98;  10  M. 
R.  540;  Chung  Kee  v.  Davidson,  $6  P.  519.  Such 
liens  do  not  prevent  the  free  severance  and  sale  of 
the  ore. — Young  v.  Northern  Co.  10  M.  R.  596;  9  Biss. 


MINERS'  LIEN.  261 

300.  The  debtor  can  continue  to  mine  after  sheriff's 
sale,  during  the  redemption  period. — Ward  v.  Carp 
River  Co.  15  N.  W.  889. 

In  Macon  v.  Trowbridge,  87  P.  1147,  an  action  to 
foreclose  a  trust  deed  on  a  mine,  defendant  was  al- 
lowed to  offset  damages  for  failure  of  the  note 
holder  to  keep  the  covenants  of  a  lease  on  the  same 
mine. 

By  Section  1  of  the  chapter  of  the  R.  S.  entitled 
"Trust  Deeds  and  Mortgages,"  trust  deeds  in  Colo- 
rado must  run  to  the  "Public  Trustee,"  otherwise  they 
can  be  foreclosed  only  as  mortgages.  Whatever  form 
is  followed  the  Statute  allows  nine  months  for  re- 
demption. The  common  law  mortgage,  both  for 
security  to  the  creditor  and  for  fairness  to  the 
debtor,  is  to  be  preferred  in  all  cases  except  in  secur- 
ing large  bond  issues  where  for  reasons  specially 
applying  to  the  negotiation  of  the  securities  a  trust 
company  or  some  personal  trustee  other  than  the 
public  trustee  is  usually  nominated. 

A  mining  partner  in  certain  cases  seems  to  have 
a  lien  for  his  advances  In  excess  of  those  of  a  co- 
partner.— Duryea  v.  Burt,  11  M.  R.  S95;  28  Cal.  599; 
Beck  v.  O'Connor,  58  P.  94;  Childers  v.  Neely,  S4  8. 
E.  828;  O.  V.  B.  Co.  v.  Bank,  95  F.  55. 

See  MINKRS*  Ln:\;  EXAMINATION  OF  TITLE. 


MINERS'  LIEN. 
To  Whom  Allowed  by  Colorado  Act. 

R.  S.  Sec.  4028. — The  provisions  of  this  Act  shall 
apply  to  all  persons  who  shall  do  work  or  shall  furnish  ma- 
terials or  mining,  milling  or  other  machinery  or  other  fix- 
tures, as  provided  In  Section  1  of  this  Act,  for  the  working, 
preservation,  prospecting  or  development  of  any  mine,  lode 
or  mining  claim  or  deposit  yielding  metals  or  minerals  of 
any  kind  or  for  the  working,  preservation  or  development 
of  any  such  mine,  lode  or  deposit,  •  •  • 

Several  Claims  Worked  Together. 

Provided,  That  when  two  or  more  lodes,  mines  or 
deposits  owned  or  claimed  by  the  same  person  or  persons 


262  MINERS'  LIEN. 

shall  be  worked  through  a  common  shaft,  tunnel,  Incline, 
adit,  drift  or  other  excavation,  then  nil  the  mines,  mininp 
claims,  lodes,  deposits  and  tunnel  and  mill  sites  so  owned 
and  worked  or  developed  shall,  for  the  purpose  of  this  Act, 
be  deemed  one  mine ;  *  *  * 

Water  Rights  and  Easements  Included. 

R.  S.  Sec.  4031. — Such  liens  shall  likewise  attach 
to  rights  of  water  and  rights  of  way  that  may  In  any  man- 
ner pertain  to  any  kind  of  property  hereinbefore  specified 
and  to  which  such  liens  attach.  *  *  * 

Oil  Wells. 

Section  4049  gives  a  lien  for  sinking  an  oil  or 
gas  well. 

A  miner  whose  wages  or  contract  money  is  in 
default,  secures  a  Hen  by  filing  with  the  County  Re- 
corder a  statement  substantially  as  follows: 

FORM    OP    LIEN    STATEMENT. 
KNOW    ALL    MEN    BY    THESE    PRESENTS  :       That    I.     Mn.r 

Dagenais,  do  hereby  give  notice  of  my  intention  to  hold  and 
claim  a  Hen  upon  the  Thomas  a'Kempis  Lode  Mining  Claim 
in  Ruby  Mining  District,  County  of  Gunnison,  State  of  Col- 
orado. 

Said  lien  is  claimed  for  work  and  labor  done  by  me 
upon  said  lode  (or  materials  furnished  l>y  me  to  said  /»</< 
for  the  working  and  development  of  the  same  and 
therein),  as  miner  for  days  pay,  at  tho  spoc-inl  Instance  and 
request  of  J.  G.  Edwards,  one  of  the  owners  or  n-puf^l 
owners  of  said  lode,  between  the  first  day  of  July.  A.  I> 
1907,  and  the  25th  day  of  December,  A.  I>.  ID"  7.  l»>th 
dates  Inclusive,  upon  the  following  abstract  of  indebted- 
ness : 

•m 

Total  amount    of    indebtedness $742.00 

Total  amount    of    credits 441.00 


Balance    due    claimant $301.00 

That  the  owners  or  reputed  owners  of  said  lode  are 
Alva  Adams  and  J.  G.  Edwards. 

Witness  my  hand  this  second  day  of  January,  A.  D. 
1908.  MAX  DAGENAIS, 

Claimant. 

STATE  OF  COLORADO,  County  of  Gunnison:  ss. 

Before  me,  the  subscriber,  Chns.  E.  Whit  field,  a  No- 
tary Public  in  and  for  said  county,  personally  appeared 
Max  Dagenais,  who,  being  duly  sworn,  saith  that  the  fore- 
going statement  and  abstract  of  Indebtedness,  and  the  mat- 


MINERS'  LIEN.  263 

ters    and    things    therein    set    forth,    are    true    to    the    best 
knowledge,    information   and   belief   of  affiant. 

MAX  DAGENAIS. 

Sworn  and  subscribed   before  me  this  second  day   of 
January,  A.  D.  1908.  Chas.   E.   Whitfleld, 

[SBAL.]  Notary    Public. 

When  the  claimant  is  a  sub-contractor  or  em- 
ployed by  a  contractor,  strike  out 

"J.   G.  Edwards,  one  of  the  owners  or  reputed  own- 
ers of  said  lode," 

and  insert 

"at   the   special   instance  and   request  of   Thomas   B. 
Crawford,  a  contractor  under  the  owners  of  said  lode." 

Sub-contractors  must  serve  a  copy  of  such  state- 
ment on  the  owner  or  his  agent,  at  or  before  the  time 
of  filing,  but  if  neither  the  owner  nor  agent  can  be 
found  in  the  County,  an  affidavit  to  that  effect  shall 
be  filed  in  lieu  of  service. 

The  time  to  file  varies  from  one  to  three  months 
according  to  the  class  or  nature  of  the  claim. 

Special  provision  is  made  in  the  Act  for  instances 
where  the  names  of  the  owners  are  unknown. 

Six  Months  to  Sue. 

An  action  must  be  commenced  to  enforce  the  lien 
within  six  months  after  work  completed  or  the  lien 
is  lost. 

Where  mines  are  worked  as  a  group  the  whole 
are  considered  as  one  mine  for  lien  purposes. — Tre- 
dinnick  v.  Red  Cloud  Co.  IS  P.  152. 

General  Statutory  Legislation. 

Miners'  or  mechanics'  liens  are  pure  creations  of 
statute,  but  are  allowed  by  specific  legislation  in  all 
the  States  and  Territories.  They  uniformly  pre- 
scribe some  such  statement  or  notice  equivalent  to 
the  above  form,  but  the  statute  of  the  particular  State 
must  be  looked  to  for  details. 

Decisions. 

A  miner  has  no  lien  upon  the  ore.  For  rule 
of  distribution  where  work  has  been  performed  on 


264  MINERS'  LIEN. 

various  parcels  of  group,  see  Bassick  Co.  v.  School- 
field,  10  Colo.  46;  Malone  v.  Big  Flat  Co.  18  P.  772. 
Lien  allowed  for  pumping  and  sloping. — Chappius  v. 
Blankman,  60  P.  926. 

A  party  engaged  in  hauling  ore  from  the  mines 
to  the  quartz  mill  has  no  lien  on  the  mine. — Barnard 
v.  McKenzie,  4  Colo.  251;  9  M.  R.  403.  Watchman  not 
entitled  to.— Williams  v.  Hawley,  77  P.  702. 

A  mining  foreman  or  superintendent  has  a  lien. 
— Palmer  v.  Uncas  Co.  70  Cal.  614;  McLaren  v. 
Byrnes,  45  N.  W.  143.  See  Smallhouse  v.  Kentucky 
Co.  2  Mont.  443;  9  M.  R.  388;  Rara  Avis  Co.  v. 
Bouscher,  9  Colo.  385. 

An  expert  has  no  lien  for  making  a  report  on  a 
mine. — Lindemann  v.  Belden  Co.  65  P.  403. 

A  laborer  working  in  a  Quartz  Mill  standing  on 
the  claim  held  to  have  a  lien  on  the  entire  mine. — 
Thompson  v.  Wise  Boy  Co.  74  P.  958.  Lien  for  mill 
building  extended  to  group  of  mines  to  operate  which 
it  was  built. — Salt  Lake  Co.  v.  Chainman  Co.  137  F. 
632. 

Lien  of  Surveyor  or  Civil  Engineer. 

Whether  R.  S.  Colo  §  4045  giving  such  lien  is 
still  in  force  is  matter  of  doubt,  but  in  any  event  a 
surveyor  seems  to  be  allowed  a  lien  under  the  terms 
of  the  general  causes  of  section  4025. 

Mine  Under  Lease. 

The  title  is  never  bound  by  lien  for  work  done 
for  a  lessee  unless  by  Statute  expressly  so  provid- 
ing. The  Arizona  Statute  does  not  give  a  lien  in 
such  case. — Griffin  v.  Hurley,  65  P.  147. 

All  the  decisions  under  the  Colorado  Acts  pur- 
porting to  give  a  lien  against  a  mine  worked  under 
lease,  have  been  against  the  validity  of  such  lien. — 
Wilkins  v.  Alell,  58  P.  612;  Antlers  Co.  v.  Cun- 
ningham, 68  P.  226;  Williams  v.  El  Dora  Co.  83  P. 
780. 

The  language  of  the  present  Act,  R.  S.  §  4028, 
a  compromise  between  those  favoring  the  lien 
and  those  opposed  to  it,  is  simply  unintelligible; 


MINERS'  LIEN.  265 

but  if  there  is  any  danger  from  that  source  it  may 
be  avoided  by  posting  notice  on  the  mine  substan- 
tially in  the  following  form: 

NOTICE. 

February   27,    1908. 

Notice  is  hereby  given  to  all  persons  performing  labor 
or  furnishing  skill,  materials,  machinery  or  other  fixtures, 
or  supplies  of  any  kind  to  or  on  the  Gen.  Cronje  mine,  upon 
which  this  notice  is  posted,  that  the  undersigned,  the  owner 
of  said  mine,  will  not  be  responsible  for  any  labor  per- 
formed on,  or  any  skill,  materials,  machinery,  fixtures  or 
supplies  of  any  kind  furnished  to  said  mine,  nor  shall  the 
interest  of  said  owner  be  subject  to  any  Hen  for  the  same. 
And  all  persons  are  hereby  notified  that  the  said  mine  and 
premises  have  been  leased  to  F.  M.  Roberts. 

HBNHY  I.  SBBMANN. 

By  Option  Holder. 

When  a  mine  is  worked  under  an  option  of  sale 
the  terms  of  such  -contracts  vary  so  widely  that  no 
general  rule  can  be  safely  stated  as  to  when  liability 
attaches  against  the  fee  simple  title.  On  a  lease  con- 
taining covenants  for  special  work  with  privilege  of 
purchase  the  owner's  estate  has  been  held  liable  in 
Eaman  v.  Bashford,  87  P.  24;  Hines  v.  Miller,  55 
P.  401;  Colo.  I.  Wks.  v.  Taylor,  Id.  942;  Hendrie 
Co.  v.  Holy  Cross  Co.  68  P.  785.  To  the  contrary.— 
Maner  v.  Shull,  52  P.  1115;  Block  v.  Murray,  SI 
P.  550;  Hadley  Co.  v.  Gumming  s,  64  P.  448;  Reese 
v.  Bald  Mt.  Co.  65  P.  578. 

The  employe  of  a  licensee  has  no  lien. — Jurgen- 
son  v.  Diller,  46  P.  610.  Nor  the  employe  of  the 
claimant  of  a  hostile  title. — Idaho  Co.  v.  Winchell, 
59  P.  5SS. 

Miner  hired  by  party  holding  possession  under 
executory  contract  of  purchase  has  no  lien. — 
Williams  v.  Hawley,  77  P.  762.  But  the  real  owner 
may  be  estopped  where  he  allows  the  option  holder 
to  assert  title. — Eastwood  v.  Standard  Co.  (Ida.)  81 
P.  882. 


CONVEYANCE. 


CONVEYANCE. 


The  ordinary  printed  forms  of  deeds  are  usually 
sufficient  to  convey  mining  claims,  but  owing  to  the 
common  practice  of  employing  conveyancers  totally 
disconnected  with  the  legal  profession,  few  abstracts, 
when  the  deeds,  as  recorded  at  length,  are  examined 
from  the  memoranda  on  the  abstract,  can  show  an 
unbroken  line  of  perfect  conveyances. 

A  common  imposition  is  to  present  a  deed  in 
the  form  of  a  warranty  purporting  to  convey  "all 
-  the  right,  title  and  interest  of  the  party  of  the  first 
part,"  which  amounts  to  no  more  than  a  quit-claim; 
or  to  make  the  consideration  of  a  warranty  deed 
nominal,  which  has  the  same  practical  effect. 

WARRANTY    DEED    ON    PATENTED    CLAIM. 

THIS  INDENTURE,  made  this  tenth  day  of  January,  In 
the  year  of  our  Lord  one  thousand  nine  hundred  and  eight, 
between  Henry  P.  Lowe,  of  the  City  and  County  of  Denver, 
State  of  Colorado,  party  of  the  first  part,  and  Willis  B. 
Herr  of  Seattle,  State  of  Washington,  party  of  the  second 
part: 

Witnesseth,  that  the  said  party  of  the  first  part,  for 
and  In  consideration  of  the  sum  of  ten  thousand  dollars,  to 
him  in  hand  paid  by  the  said  party  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  hath  granted,  bar- 
gained and  sold,  and  by  these  presents  doth  grant,  bargain, 
sell  and  convey  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns : 

All  the  following  described  real  estate,  situate  in 
Alhambra  Mining  District,  County  of  Park,  State  of  Colo- 
rado, to  wit: 

The  Fickle  Goddess  Lode  Mining  Claim,  known  as 
Survey  Lot  No.  777,  being  1.500  feet  in  length  and  300  feet 
In  width,  situate  on  South  Mountain. 

Together  with  all  and  singular  the  mines,  minerals, 
lodes  and  veins  within  the  lines  of  said  claim,  and  their 
dips  and  spurs  and  all  dumps,  plant,  fixtures,  Improvements, 
rights,  privileges  and  appurtenances  thereunto  in  anywise 
belonging. 

To  have  and  to  hold  the  lands,  tenements  and  hered- 
itaments hereby  conveyed  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  forever. 

And  the  said  party  of  the  first  part,  for  himself,  his 
heirs,  executors  and  administrators,  doth  hereby  covenant 
and  agree  with  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  that  the  said  premises  and  every  part  thereof, 


CONVEYANCE.  267 

are  free  and  clear  of  and  from  any  and  all  liens,  incum- 
brances.  trusts  and  taxes,  and  that  he,  the  said  party  of  the 
tirst  parr,  his  heirs,  executors  and  administrators,  unto  the 
said  party  of  the  second  part,  his  heirs  and  assigns,  the 
said  pivmisfs  and  every  part  thereof,  against  himself,  his 
heirs  and  assigns,  and  every  other  person  lawfully  claiming 
or  to  claim  the  same  or  any  part  thereof,  SHALL  AND 
WILL  WARRANT  AND  FOREVER  DEFEND;  always  sav- 
ing ami  cfcciitinij  the  same  provisos,  reservations  and  limi- 
tations contained  in  the  patent  of  the  United  States  issued 
for  said  survey  lot. 

In  witness  whereof  the  said  party  of  the  first  part 
hath  hereunto  set  his  hand  and  seal. 

HENRY   P.  LOWE.     [SEAL.] 

STATE  <  F  COLORADO,  City  and  County  of  Denver:  ss. 

I,  Arthur  R.  Morrison,  a  Notary  Public  in  and  for 
said  County,  do  hereby  certify  that  Henry  P.  Lowe,  who  is 
nally  known  to  me  to  be  the  same  person  described  in 
and  who  executed  the  within  indenture,  personally  appeared 
lirfure  me  this  day  and  acknowledged  that  he  signed,  sealed 
and  delivered  the  said  indenture  as  his  free  and  voluntary 
a.t  and  deed  for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  notarial  seal  this  tenth  day  of 
Janunrii.  A.  I  >.  1908.  Arthur  R.  Morrison, 

|  SKA  I,.]  Notary    Public. 

The   Date  of  Expiration   of   Commission  Is   Re- 

quired to  be  noted  on  all  acknowledgments  and  affi- 

davits taken  before  a  notary  public  under  Colorado 

ite..  /'.  8.  fif<  •  . 


Warranty  of  Claim  Entered  for  Patent. 

the  same  form  inserting  the  words  "to  be" 
before  "issued"  and  adding  the  words  "as  entered 
in  the  Land  Office"  after  the  words  "said  survey  lot" 
in  the  saving  clause  of  the  warranty. 

Warranty  of  Possessory  Claim. 

Use  the  same  form  as  for  "Patented  Claims,  " 
omitting  the  words  "Survey  Lot  No.  —  ,"  and  omit- 
ting the  clause  in  italics.  Instead  of  such  clause  in- 
sert "always  saving  and  excepting  the  United  States 
of  America." 

Special  Warranty. 

When  the  grantor  desires  to  warrant  his  own 
chain  of  title,  but  not  against  parties  claiming  under 


268  CONVEYANCE. 

other  locations,  insert  before  the  words  "shall  and 
will  warrant,"  this  clause: 

"By,  through  or  under  the  said  party  of  the  first 
part,  or  his  grantors" 

QUIT-CLAIM    DEED. 

THIS  INDENTURE,  made  this  thirty-first  day  of  Janu- 
ary, in  the  year  of  our  Lord  one  thousand  nine  hundred  and 
eight,  between  J.  Stanley  Jones,  of  the  City  and  County  of 
Denver,  State  of  Colorado,  party  of  the  first  part,  and 
Henry  C.  Beeler,  of  the  County  of  Laramie,  State  of  Wyo- 
ming, party  of  the  second  part : 

Witnesseth,  that  the  said  party  of  the  first  part,  lor 
and  in  consideration  of  the  sum  of  one  thousand  dollars,  to 
him  in  hand  paid  by  the  said  party  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  hath  remised,  re- 
leased and  quit-claimed,  and  by  these  presents  doth  remise, 
release  and  quit-claim  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns : 

All    the    following    described    real    estate,    situate    in 
The  Consolidated  Ten  Mile  Mining  District,  County  of  .k 
mit,   State  of  Colorado,  to  wit : 

The  GBACB  CURRIER  lode  mining  claim,  Survey  Lot 
No.  666,  1,500  feet  in  length  and  150  feet  in  width,  located 
on  the  west  slope  of  Sheep  Mountain. 

Together  with  all  and  singular  the  lodes  and  veins 
within  the  lines  of  said  claim,  and  the  dips,  spurs,  mines, 
minerals,  dumps,  fixtures,  improvements,  rights,  privileges 
and  appurtenances  thereunto  in  anywise  belonging. 

To  have  and  to  hold  the  lands,  tenements  and  heredi- 
taments hereby  conveyed  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  forever. 

In  witness  whereof,  the  said  party  of  the  flr*t  part 
hath  hereunto  set  his  hand  and  seal. 

J.  STANLEY  JONES.     [SEAL.] 

Acknowledge  as   on  page  £67. 

A  Quit  Claim  Deed  is  commonly  used  where  the 

title  is  possessory,  and  where  the  title  is  clear  it 
passes  the  title  as  effectually  as  a  warranty.  But 
the  grantee  in  a  quit-claim  may  be  chargeable  with 
notice  of  equities  not  chargeable  to  a  purchaser  by  a 
general  or  special  warranty. — Hannan  v.  Seidentopf, 
86  N.  W.  45.  Where  the  grantee  knows  that  another 
is  in  adverse  possession  of  what  he  is  buying,  he 
is  not  an  innocent  purchaser. — Wetzstein  v.  Largey, 
27  Mont.  212;  10  P.  717. 


CONVEYANCE.  269 

Mining  Deeds. 

There  has  couie  into  use  a  form  of  deed  called 
a  Mining  Deed,  the  blanks  for  which  vary.  They 
contain  after  the  space  left  for  description,  the  for- 
mula "Together  with  the  Dips,"  etc.,  substantially 
as  in  the  above  forms.  A  deed  to  a  mine  does  not 
differ  from  a  deed  to  other  real  property  in  the  same 
condition  of  title,  except  in  the  description,  and  the 
phrase  "Together  with,  etc.,"  which  is  really  part  of 
the  description.  Most  of  these  deeds  contain  in  their 
granting  clause  the  operative  words  of  a  warranty 
in  connection  with  the  operative  words  of  a  quit- 
claim— "grant,  bargain  and  sell,"  "remise,  release 
and  quit-claim." 

But  their  legal  effect  is  more  that  of  a  quit-claim 
than  that  of  a  warranty,  except  that  the  words  "grant, 
bargain,  sell  and  convey"  have  the  special  force  of 
passing  an  after  acquired  title,  and  by  legislation  the 
word  "grant"  in  some  States  is  made  to  imply  a 
warranty  against  incumbrances.  In  examining  ab- 
stracts they  will  of  course  be  considered  as  transfer- 
ring the  grantor's  interest,  but  no  lawyer  or  trained 
conveyancer  would  advise  such  deed,  or  any  form  of 
statutory  deed  where  certain  words  are  declared  to 
have  a  certain  talismanic  charm,  in  preference  to  the 
known,  fixed  and  understood  grants  and  covenants 
of  a  common  law  warranty. 

Short  Form  of  Deed. 

By  Colorado  Act  of  1887  (Laws,  p.  226)  short 
forms  of  deeds  were  introduced. 

"The  implied  warranty  which  the  vendor  in  ig- 
norance of  its  nature  is  made  liable  for  by  this  stat- 
utory form,  is  totally  inapplicable  to  mining  claims 
whether  patented  or  possessory.  It  would  make  the 
vendor  liable,  if  liable  for  anything,  for  a  fee  simple 
title  even  to  making  good  the  exceptions  on  the  face 
of  the  patent.  If  used  in  conveying  a  possessory 
claim  there  is  a  breach  of  the  warranty  the  moment 
the  instrument  is  delivered.  What  is  conveyed  by 
the  so  called  short  form  of  quit-claim  deed,  it  is  im- 


270  CONVEYANCE. 

possible  to  say.  The  entire  set  of  forms  should  be 
discarded." 

The  above  paragraph  is  the  language  used  about 
these  statutory  forms  of  deeds  in  the  sixth  edition  of 
this  book.  We  have  never  qualified  it  and  only  add 
that  the  Act  was  repealed  at  the  1889  session. 

Description. 

The  exact  description  of  a  located  lode  or  placer 

is  "The Lode  Mining  Claim"  or  "The 

Placer  Mining  Claim."  If  patented  add  the  words 
"Survey  Lot  No "  The  number  of  the  min- 
eral entry  is  superfluous,  and  to  describe  the  prem- 
ises by  metes  and  bounds  is  not  good  conveyancing, 
except,  of  course,  when  a  fraction  of  a  claim  is  con- 
veyed. The  name  is  usually  a  sufficient  description. 
—Smith  v.  Sherman  Co.  31  P.  72;  Glacier  Co.  v. 
Willis,  127  U.  8.  472.  The  word  "mine"  is  a  danger- 
ous term  and  to  be  avoided,  as  often  an  entire  group 
of  claims  are  known  collectively  by  the  name  of  one 
mine,  and  such  entire  group  might  pass,  and,  in  fact, 
might  be  intended  to  pass  by  the  use  of  such  sweep- 
ing term. — Smith  v.  Sherman  Co.  31  P.  72;  Phillips 
v.  Salmon  R.  Co.  72  P.  886.  The  word  "lode"  is 
commonly  used  as  synonymous  with  lode  mining 
claim. — Buckeye  Co.  v.  Carlson,  66  P.  168. 

A  contract  to  convey  a  mining  claim  by  name 
implies  that  vendor  has  a  located  claim  and  not  a 
mere  prospect. — La  Grande  Co.  v.  Shaw,  72  P.  795. 

Deed  Subdividing  Lode  Claim — Dip. 

Owing  to  the  relation  of  the  dip  to  the  strike, 
when  a  line  is  drawn  across  a  lode  claim  at  right 
angles  to  the  side  lines  at  the  surface,  such  line  be- 
ing intended  for  the  division  line  between  the  part 
retained  and  the  part  sold,  such  line  when  carried 
vertically  downward  may  cut  off  the  vein  on  its  dip 
in  such  a  way  as  to  divide  it  in  an  unexpected  man- 
ner. If,  for  instance,  at  the  surface,  it  begins  at 
the  "west  end  of  discovery  shaft,"  it  may  leave  the 
bottom  of  such  shaft  entirely  on  one  fraction. of  the 
lode  within  a  comparatively  few  feet  of  sinking. 


CONVEYANCE.  271 

Such  result  or  a  similar  result  will  invariably  occur 
where  the  vein  has  a  dip,  unless  the  end  lines  are  at 
an  exact  right  angle  to  the  strike  of  the  vein. — See 
Plat,  p  118. 

Apex  Eights  of  Irregular  Fraction. 

Where  the  whole  lode  is  conveyed  there  is  no 
doubt  that  the  deed  carries  the  right  to  follow  it  on 
the  dip  to  the  full  extent  the  grantor  may  have  had 
such  right.  The  same,  if  a  certain  number  of  feet 
off  either  end  of  the  claim  are  conveyed,  to  the  ex- 
tent of  feet  granted. 

But  where  a  strip  or  Irregular  fraction  of  the 
claim  is  carved  out  and  sold  the  question  of  the  apex- 
rights  of  such  segregated  parcel  arises,  and  the 
tendency  of  the  decisions  is  that  the  grantee  has  the 
right  to  follow  on  the  dip  whatever  veins  may  apex 
on  the  ground.  Of  course  such  right  would  be  lim- 
ited by  the  end  lines  and  planes  projected  from  the 
end  lines  of  the  claim. 

In  Stinchfleld  v.  GilUs,  SO  P.  839,  It  was  held 
that  all  voins  apex  ing  within  the  surface  area  are 
conveyed  although  carried  by  the  dip  Into  other  land 
of  the  grantor. 

Tn  Boston  Co.  v.  Montana  Co.  89  F.  529.  it  was 
held  that  the  grantee  could  follow  on  the  projection 
of  one  of  the  lines  of  the  pentagonal  tract  described, 
the  same  as  If  It  were  an  end  line  In  a  patent.  This 
gave  to  one  party  diverging,  and  to  the  other,  con- 
verging end  planes.  The  contention  that  each  party 
was  to  follow  as  much  of  the  vein  as  apexed  within 
his  own  territory  both  governed  by  parallel  end  line 
planes  always  seemed  to  us  the  more  Just,  simple  and 
reasonable  rule  to  apply  to  this  class  of  cases. 

The  rule  contended  for  has  been  adopted  by  the 
Supreme  Court  of  Montana,  and  the  ruling  In  the 
Federal  case  disapproved. — Montana  Co.  v.  Boston 
Co.  70  P.  1114. 

In  settlement  of  disputed  title  between  the  Nine 
Hour  and  St.  Louis  Lodes,  The  Montana  Co.  con- 
veyed to  the  St.  Louis  Co.  a  strip  of  the  disputed 


272  CONVEYANCE. 

ground  30  feet  wide  by  400  feet  in  length.  The  deed 
conveyed  the  strip  with  the  dips,  spurs  and'  angles 
and  "all  the  mineral  therein  contained."  Afterwards 
a  vein  not  then  known  to  exist  was  found  to  dip 
underneath  this  strip.  The  Federal  Courts  below  al- 
lowed the  grantor  to  work  this  vein  underneath  the 
strip,  but  the  Supreme  Court  finally  held  that  the 
words  above  quoted  were  a  common  law  grant  and 
covered  the  ore  in  this  dipping  vein  between  the  ver- 
tical lines  of  the  strip.  And  they  further  intimated 
that  the  grantor  might  have  a  right  of  way  to  get 
at  its  vein  beyond  the  strip. — Montana  M.  Co.  v.  St. 
Louis  M.  Co.  204  U.  8.  204,  overruling  102  F.  430 
and  104  F.  66fh 

Cross  Lodes. 

The  Stinchfleld  case,  supra,  as  reported  in  .',n 
P.  98,  holds  that  the  grantor  cannot  claim  for  his 
vein  retained,  any  rights  as  a  cross  lode,  without 
special  reservation  to  that  effect. 

Same  Ground  Covered  by  Conflicting  Locations. 

The  owners  of  the  Edna,  after  record,  changed 
their  stakes  so  as  to  produce  a  conflict  with  the 
Lightning.  They  then  sold  the  Edna  by  the  recorded 
description  and  afterwards  bought  the  Lightning. 
Held  that  they  were  estopped  to  set  up  the  Lightning 
title  against  the  ground  in  conflict. — Khreve  v.  Cop- 
per Bell  M.  Co.  28  P.  315. 

Where  the  same  lode  or  ground  is  covered  by 
more  than  one  location  owned  by  the  same  grantor 
his  deed  of  one  may  be  construed  to  convey  the  title 
under  both  locations. — Weill  v.  Lucerne  Co.,  11  Nev. 
200;  S  M.  R.  373;  Phillpotts  v.  Blasdel,  4  M.  R.  341; 
8  Nev.  61;  Lebanon  Co.  v.  Cons.  Rep.  Co.  6  Colo.  372; 
Shoshone  Co.  v.  Rutter,  87  F.  801.  For  construc- 
tion of  conveyance  in  general  terms  after  portion  of 
a  survey  lot  had  been  segregated  by  judgment,  see 
Mollie  Gibson  Co.  v.  Thatcher,  57  F.  865. 

The  locator  of  a  lode  claim  afterwards  secured 
a  placer  patent  covering  the  same  ground  after  he 


CONVEYANCE.  273 

had  conveyed  a  part  of  the  lode  location  to  third 
parties.  Held,  that  his  patent  perfected  title  to  his 
grantee  for  the  ground  conveyed. — Collins  v.  McKay, 
M  P.  295. 

Severance  of  Mines  and  Surface  Reservation. 

Where  minerals  are  specially  granted  or  where 
surface  is  granted  without  the  minerals,  there  should 
be  special  covenants  for  support  of  the  soil  and  build- 
ings or  for  right  of  entry  to  get  at  the  minerals  re- 
served, as  the  case  may  be;  although  in  such  cases 
those  incidents  are  implied  to  the  extent  necessary  to 
enjoy  each  severed  estate.  See  p.  240. 

KVATION. 

Insert  after  the  clause  "To  have  and  to  hold:" 

Always  saving,  excepting  and  reserving  unto  the  said 
party  of  the  first  part,  his  heirs  and  assigns,  all  mines  and 
minerals,  lodes,  veins  and  deposits  found  or  to  be  found 
under  or  within  the  lines  or  area  of  the  above  granted  prem- 
ises with  such  reasonable  use  of  the  surface  ground  ns  may 
be  necessary  to  win,  work  and  carry  nwny  snid  minerals 
so  excepted  and  reserved. — Roger*,  p.  880;  Dainbridge,  p.  480. 

While  the  distinction  between  an  exception  and 
a  reservation  is  well  established  the  words  are  often 
used  interchangeably. — Moore  v.  Qriffln,  88  P.  395. 

Witnesses. 

No  attesting  witnesses  are  required  to  deed  con- 
veying land  in  Colorado  or  the  other  States  or  Terri- 
tories of  the  Pacific  slope  excepting  Utah  and  Wyo- 
ming, which  require  one  attesting  witness,  and 
Alaska  and  Oregon  which  require  two.  A  deed 
signed  with  the  grantor's  mark  must  be  always  wit- 
nessed on  general  principles.  A  deed  of  a  mining 
claim  in  Alaska  not  acknowledged  and  not  having 
two  witnesses  is  void. — Alaska  Ex.  Co.  v.  Northern 
Co.  152  F.  145. 

Dower — Wife's  Signature. 

In  all  those  States  where  the  right  of  dower 
exists  the  wife  must  of  course  join  in  the  husband's 
deed,  in  order  to  bar  her  right.  These  States  (and 


274  CONVEYANCE. 

the  Eastern  States  generally)  are  Alaska,  Montana, 
Oregon  and  Utah.  In  Arizona  the  wife  must  join 
in  husband's  deed  except  for  unpatented  mining 
claims. 

The  widow  has  no  right  of  dower  in  a  mining 
claim  held  by  possessory  title. — Black  v.  Elkhorn  Co. 
168  U.  S.  445-  Otherwise  as  to  mines  owned  in  fee. — 
Whittaker  v.  Lindley,  8  8.  W.  9;  Stoughton  v.  Leiyli. 
5  M.  R.  47;  1  Taunt.  402. 

Husband's  Signature  Necessary. 

The  husband  is  required  to  join  in  the  wife's 
deed  in  Alaska.  In  California  and  Washington,  in 
a  conveyance  of  community  property  the  husband 
must  join  in  the  wife's  deed  and  the  wife  in  the 
husband's  deed.  In  all  cases  where  both  are  re- 
quired to  join,  it  is  assumed  that  a  separate  acknowl- 
edgment by  the  wife,  is  required. 

Acknowledgments. 

An  acknowledgment  before  a  notary  public  is 
customary  and  valid  in  any  of  the  Pacific  States  or 
Territories,  though  the  land  lies  in  one  state  and  the 
acknowledgment  is  taken  in  another.  Where  the  deed 
conveys  land  in  another  State  a  commissioner  of 
deeds  for  such  State,  if  accessible,  is  always  author- 
ized to  take  the  acknowledgment.  When  taken  be- 
fore this  officer  no  certificate  of  his  official  character 
is  required. 

Other  officers  are  named  in  the  statutes  of  the 
several  States,  but  a  notary  public  within  the  State, 
a  commissioner  or  notary  without  the  State,  and  a 
consul  in  foreign  countries,  are  legalized  to  prove 
deeds  by  this  form  in  all  the  aforesaid  States  and 
Territories. 

For  form  of  acknowledgment  by  an  individual 
see  page  267.  The  following  are  correct  forms  in  the 
case  of  corporations  and  deeds  executed  under  Power 
of  Attorney: 


CONVEYANCE.  275 


ACKNOWLEDGMENT  IIY   CORPORATION. 

STATE  OF  COLORADO,  Hinsdale  County  :  ss. 

I,  William  L.  Siegmund,  a  Notary  Public  in  and  for 
said  County,  do  hereby  certify  that  John  E.  Searles,  Pres- 
ident of  the  Coldstream  Mining  Company,  who  is  personally 
known  to  me  to  be  such  President,  and  the  same  person  who 
as  such  President,  subscribed  the  corporate  name  and  caused 
the  corporate  seal  of  said  Company  to  be  affixed  to  the 
above  Indenture,  personally  appeared  before  me  this  day 
and  acknowledged  the  same  to  be  the  free  and  voluntary 
act  and  deed  of  the  said  corporation  for  the  uses  and  pur- 
poses therein  set  forth. 

Witness  my  hand  and  Notarial  Seal  this  third  day  of 
Jnnuam.  A.  D.  1908.  \\  tn.  L.  Siegmund, 

[SEAL.]  Notary  Public. 

BY    ATTORNEY    IN    FACT. 

i»  STATES  OF  AMERICA,  DISTRICT  OF  COLORADO:  ss. 

I.  Charles  W.  Bishop.  Clerk  of  the  Circuit  Court  of 
the  United  States  In  said  district,  do  hereby  certify  that 
.linn  r.  Webb,  Attorney  in  Fact,  of  the  within  named  George 
n  /?;•».../;>•,  \\i>.»  is  :•  rsonally  known  to  me  to  be  such 
Attorney  In  Fact,  ana  the  same  person  within  described  as 
such  Attorney  in  Fact,  and  who  affixed  the  name  and  seal 
of  his  said  principal  to  the  within  Indenture,  personally  ap- 
<\  before  me  this  day  and  acknowledged  the  said  Inden- 
ture to  be  his  free  and  voluntary  act  and  <l«M><i  nnd  the  free 
and  voluntary  act  and  deed  of  the  said  George  W.  Brooks 
for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  the  Seal  of  said  Court,  this 
third  day  of  January,  A.  D.  1908. 

Charles  W.  Bishop. 

[SBAL.]  Clerk  of  Court. 

Corporate  Deeds. 

The  presence  of  the  Corporate  Seal  is  prima 
facie  proof  that  it  is  the  deed  of  the  Corporation.  A 
third  party  cannot  attack  the  validity  of  a  corporate 
deed  for  non-compliance  with  the  statutory  require- 
ments. Such  requirements  are  for  the  protection  of 
the  stockholders.— Oalbraith  v.  Shasta  Co.  76  P.  901. 

Agreements  for  Deed  are  often  in  the  shape  of 
a  title  bond,  time  being  made  of  the  essence  of  the 
contract  in  every  form  In  use;  but  an  executory  con- 
tract in  any  other  form  Is  of  equal  validity. — R.  S. 
Colo.  §§  682,  683,  694.  A  title  bond  or  any  other 
paper  purporting  to  allow  an  option  to  purchase 
should  always  show  more  than  a  nominal  part  of  the 


276  CONVEYANCE. 

consideration  as  paid  or  contain  some  express  cove- 
nant by  the  vendee,  to  make  some  payment  or  ex- 
penditure, as  for  instance  to  do  certain  specified 
work  upon  the  property — to  avoid  the  possibility  of 
its  being  held  void  for  want  of  mutuality. 

Naked  title  bonds  have  been  ruled  to  be  mere 
options,  and  therefore  without,  consideration  and  re- 
vocable.— Smith  v.  Reynolds,  2  M.  R.  227;  8  F.  696; 
Finerty  v.  Fritz,  5  Colo.  174;  1  M-  R.  437;  Gordon  r. 
Darnell,  2  M.  R.  220;  5  Colo.  302.  But  where  the 
holder  of  the  bond  pays  a  part  of  the  consideration 
or  agrees  to  develop  the  property  or  in  any  other 
manner  gives  a  valuable  consideration  the  agreement 
is  valid  as  a  contract  binding  on  the  parties,  and 
when  recorded  binds  the  property. — Penn.  M.  Co.  v. 
Smith,  56  Atl.  426. 

The  right  of  choice  is  what  the  option  holder 
pays  for.  An  option  contract  is  necessarily  non- 
mutual. — Pittsburg  Co.  v.  Bailey,  90  P.  808. 

A  party  has  the  right  to  agree  to  convey  prop- 
erty to  which  he  has  at  the  time  no  title. — Donovan 
v.  Hanauer,  90  P.  569. 

TITLE    BOND. 
KNOW    ALL    MEN    BY    THESE    PRESENTS,    That    I,    Dennis 

Sullivan,  of  the  City  and  County  of  Denver,  State  of  Colo- 
rado, am  held  and  firmly  bound  unto  David  F.  Day,  of  the 
County  of  Ouray,  In  said  State,  In  the  penal  Bum  of  forty 
thousand  dollars,  to  be  paid  to  the  said  David  F.  Day,  his 
heirs,  executors,  administrators  or  assigns ;  to  which  pay- 
ment, well  and  truly  to  be  made,  7  do  bind  myself,  my  heirs, 
executors  and  administrators,  and  every  of  them,  Jointly 
and  severally  firmly  by  these  presents. 

Witness  my  hand  and  seal,  this  fourth  day  of  May, 
In  the  year  of  our  Lord  one  thousand  nine  hundred  and 
seven. 

\\HEREAS,  The  above  bounden  obligor  hath  this  day 
sold  to  the  said  David  F.  Day  certain  real  estate  situate  in 
Battle  Mountain  Mining  District,  County  of  Eagle,  State  of 
Colorado,  to  wit :  The  Legality  Lode  Mining  Claim,  Survey 
Lot  A7o.  99,  containing  1,500  feet  in  length  by  300  feet  in 
width,  on  Battle  Mountain. 

Together  with  all  and  singular  the  lodes  and  veins 
within  the  lines  of  said  claim  (and  not  excepted  on  the 
official  plat)  and  all  mines,  minerals,  dumps,  plant,  fixtures, 
machinery,  tramways,  improvements,  rights,  privileges  and 
appurtenances  thereunto  in  anywise  belonging. 


CONVEYANCE.  277 

For  the  sum  of  twenty  thousand  dollars  to  be  paid  to 
the  said  obligor,  his  executors,  administrators  or  assigns. 
«>r  deposited  to  his  credit  in  the  First  National  Bank,  Den- 
ido,  on  or  before  the  tenth  day  of  May,  A.  D.  1908, 
and  for  the  further  consideration  that  said  obligee  shall, 
before  the  said  last  mentioned  date,  expend  the  sum  of  at 
least  one  thousand  dollars  in  the  actual  underground  devel- 
opment of  said  property. 

Now,  THEREFORE,  the  condition  of  the  above  obliga- 
tion is  such  that  if  the  above  bounden  obligor,  his  heirs  or 
assigns,  on  payment  or  deposit  of  the  said  sum  of  tu'cnty 
thousand  dollars  in  manner  aforesaid,  and  expressly  within 
the  time  limited  as  aforesaid,  time  being  of  the  essence  of 
this  contract,  as  to  such  payment  or  deposit,  shall  make, 
execute,  acknowledge  and  deliver  at  his  own  cost  and 
charges,  good  and  sufficient  deed  or  deeds  of  <nncral  war- 
ranty to  the  said  David  F.  Day,  his  heirs  and  assigns,  or  to 
such  person,  persons  or  company  as  he  shall  nominate,  con- 
veying said  premises  with  good  and  perfect  title.  fre»»  from 
encumbrance,  then  this  obligation  to  be  void,  otherwise  to 
remain  In  full  force  and  virtue. 

DENNIS  SULLIVAN.     [SEAL.] 

In  consideration  of  the  option  expressed  in  this  ob- 
ligation, I  agree  to  expend  the  sum  of  $1,000  therein  men- 
tioned In  the  actual  underground  development  of  the  above 
ribed  property  within  three  months  from  the  date  of 
this  Bond. 

Witness  my  hand  and  seal  this  fourth  day  of  May, 
A.  D.  1907.  DAVID  F.  DAY.  [SEAL.] 

Where  one  of  several  parties  executes  a  mining 
agreement  on  behalf  of  all,  with  their  knowledge, 
they  may  (in  instances)  be  held  without  signing. — 
Rice  v.  Ege,  16  M.  R.  179;  42  F.  6V;/. 

Time  Is  of  the  Essence  of  the  Contract  in  a  title 
bond  on  a  mine. — Presidio  Co.  v.  Bullis,  4  8.  W.  860; 
Merk  v.  Bowery  Co.  78  P.  5/9.  Or  in  suit  for 
specific  performance. — Durant  v.  Comegys,  28  P.  4%>- 
And  in  mining  contracts  generally. — Waterman 
v.  Banks,  144  U.  8.  894.  It  may  be  made  so  either 
from  the  nature  of  the  subject  matter  or  the  con- 
tract of  the  parties.— Settle  v.  Winters,  10  P.  216. 
But  it  may  be  waived  verbally  or  by  allowing 
the  vendee  to  work  on  assurances  of  extension. — 
Mason  v.  Sieglitz,  44  P.  588;  Presidio  Co.  v.  Bullis, 
supra.  And  delay  may  be  explained  even  in  a  specific 
performance  case. — Hosmer  v.  Wyoming  Co.  129  F. 
884. 


278  CONVEYANCE. 

Default  After  Part  Payment. 

The  forfeiture  of  part  payments  as  liquidated 
damages  has  been  generally  upheld. — Clark  v.  Amer- 
ican Co.  72  P.  978;  Garcin  v.  Penn.  Co.  11  N.  E.  193. 

WORKING    CONTRACT    SALE. 

For  and  in  consideration  of  the  sum  of  $500  to  me 
in  hand  paid  by  Orrin  F.  Place,  the  receipt  whereof  is  hereby 
acknowledged,  I,  Charles  H.  Morris,  do  hereby  agree  to  place 
said  Orrin  F.  Place  in  full  and  sole  possession  and  control 
of  the  Fair  Deceiver  Lode  Mining  Claim,  situate,  etc.,  with 
authority  to  work  and  prospect  the  same  as  he  sees  fit  for 
the  term  of  sixty  days  from  date,  provjded  only,  that  such 
work  be  done  in  good  and  workmanlike  manner,  and  that 
any  ore  taken  out  shall  be  separated  and  left  on  the  dump, 
and  not  removed  during  the  lifetime  of  this  contract.  And 
at  any  time  within  said  period,  on  tender  to  me  of  the  fur- 
ther sum  of  $4,500,  I  agree  to  deliver  a  good  and  sufficient 
warranty  deed  to  the  said  Orrin  F.  Place,  his  heirs  and  as- 
signs, conveying  said  above  described  premises  absolutely 
and  clear  of  encumbrance. 

In  case  no  such  tender  is  made,  said  sum  of  $500  is 
to  be  treated  as  the  consideration  of  this  option  and  right 
of  testing  and  to  be  and  remain  my  property  as  liquidated 
damages. 

In  case  my  title  is  found  defective  and  I  fail  to  make 
it  good  and  marketable  within  said  period,  I  agree  to  pay 
said  Orrin  F.  Place  the  cost  of  abstract  and  the  vendee's 
attorney's  reasonable  charges  for  examination  of  title,  and 
to  refund  said  sum  of  $500. 

The  ore  taken  out  during  said  period  is  to  be  the 
property  of  the  party  who  remains  or  becomes  the  owner 
at  the  end  of  said  period  of  sixty  days. 

Time  Is  of  the  essence  of  this  contract  in  all  par- 
ticulars. 

Witness  my  hand  and  seal  this  10th  day  of  Mn\i, 
A.  D.  1907.  CHARLES  II.  MORRIS.  [SEAL.] 

In  consideration  of  the  delivery  to  me  of  the  above 
option,  I  agree  to  expend  at  least  $500  in  work  upon  the 
above  described  property  within  the  lifetime  of  said  option. 

Witness  my  hand  and  seal  the  date  above  written. 
ORRIN  F.  PLACE.     [SEAL.] 

A  vendor  cannot  re-enter  and  at  the  same  time 
collect  the  purchase  money  notes.  He  cannot  have 
both  remedies. — Hanson  v.  Dayton,  158  F.  2-58. 

SALE   SUBJECT    TO    EXAMINATION   OF   TITLE. 

The  undersigned,  James  W.  Swisher,  of  Breckenridge, 
State  of  Colorado,  hath  agreed  to  sell  to  Frank  M.  Taylor ', 
of  Denver,  in  said  State,  and  said  Frank  M.  Taylor  hath 
agreed  to  buy  of  and  from  said  James  W.  Swisher  the  Corinne 


CONVEYANCE.  279 

Rowland  Lode  Mining  claim,  situate  in  Gregory  Mining  Dis- 
trict, Gi/pin  County,  Colorado,  for  the  consideration  of 
$18,000  to  be  paid  within  six  months  from  date,  fee  simple 
(or  good  possessory)  title  to  be  delivered  and  warranted 
clear  of  liens.  Title  subject  to  approval  of  J.  W.  B.  SmitU. 
attorney  for  purchaser.  Cost  of  deeds  to  be  paid  bv  vendor  ; 
of  examination  of  title  by  purchaser.  Vendor  to  deliver  at 
his  own  cost  certified  abstracts  of  title  within  ten  days  to 
said  attorney.  Deeds  to  pass  on  tender  of  the  sum  above 
mentioned  within  the  period  of  six  months  above  limited. 

If  no  tender  is  made  within  such  period  the  pur- 
chaser shall  be  in  default  unless  he  show  the  title  mate- 
rially defective,  or  a  prior  breach  of  contract  by  vendor, 
or  that  material  misrepresentations  as  to  the  mine  or 
mineral  have  been  made  to  him  by  the  vendor  or  by  parties 
in  the  interest  of  the  vendor,  and  thereupon  either  party 
may  proceed  for  specific  performance  or  for  damages  or 
both  or  otherwise  as  he  may  be  advised. 

Witness  the  hands  and  seals  of  said  parties  this  £}f/i 
day  of  April,  A.  D.  1907. 

JAMES  W.   SWISHBR.     [SEAL.] 
FRANK   M.   TAYLOR.        [SEAL.] 

The  right  to  examine  the  abstract  of  title  be- 
fore payment  is  a  condition  precedent  in  the  nature 
of  things. — Penn.  Co.  v.  Thomas,  54  Ail.  101. 

CONTRACT   TO   SELL  AND   TO    BUT. 

I,  Ji.il  1.  \atte,  vendor,  hereby  agree  to  sell  to 
Charles  8.  Thomas,  and  I,  Charles  S.  Thomas,  purchaser, 
agree  to  buy  of  said  Joel  F.  Vaile,  the  Dream  Placer  Mining 
<  Maim,  situate,  etc. 

The  agreed  consideration  of  said  sale  Is  $1,000  cash 
In  hand  paid,  the  receipt  whereof  is  hereby  acknowledged  ; 
$3,000  to  be  paid  within  sixty  days  from  the  date  hereof, 
and  $6,000  within  ninety  days  from  such  date,  making  a 
total  consideration  of  $10.000. 

Said  vendor  within  ten  days  from  date  will  deliver 
to  purchaser,  or  bis  attorney,  an  abstract  of  title  duly  cer- 
tified by  the  clerk  and  recorder  of  said  county,  or  by  some 
reputable  abstract  office,  together  with  all  the  original  title 
papers  which  are  in  his  possession  or  within  his  power  to 
produce. 

And  within  said  time  will  place  in  escrow  in  the 
National  Bank  of  Commerce,  Denver,  a  good  and  sufficient 
warranty  deed  conveying  to  said  Charles  8.  Thomas,  or  such 
person  as  he  shall  nominate,  the  said  premises  clear  of 
encumbrance,  to  be  by  such  bank  held  in  escrow  until  final 
payment  be  made  under  this  contract  or  default  is  made 
under  the  same.  Deposit  in  said  bank  to  the  credit  of 
vendor  shall  be  equivalent  to  payment  of  any  of  said  in- 
stalments. 

Time  is  of  the  essence  of  this  contract  as  to  each 
and  every  instalment,  and  if  any  instalment  or  instalments 


280  CONVEYANCE. 

be  not  paid  within  the  time  or  times  hereby  limited  there- 
for, all  previous  instalments  shall  be  and  remain  the  prop- 
erty of  said  vendor,  the  deed  in  escrow  shall  be  returned 
to  him  for  cancellation,  and  the  property  shall  remain  his 
own,  unaffected  and  unencumbered  by  this  contract.  But 
if  he  fail  to  deliver  abstract  within  said  period,  or  to  de- 
posit said  deed  in  escrow,  or  if  his  title  prove  encumbered 
or  otherwise  not  marketable,  vendee  may  recover  any  and 
all  instalments  paid,  or  may  sue  for  specific  performance 
and  for  a  perfect  title,  or  for  damages  or  otherwise  as  he 
may  be  advised. 

Witness  the  hands  and  seals  of  said  parties  this 
tenth  day  of  May,  A.  D.  1907. 

JOEL  F.   VAILB.  [SEAL.] 

CHARLES    S.   THOMAS.     [SEAL.] 

A  better  because  a  fairer  contract  than  the  last 
above  given,  is  a  sale  by  deed,  securing  the  unpaid 
instalments  by  note  and  mortgage. 

The  terms  of  sale  are  so  variant  and  the  tempta- 
tions to  evade  become  so  great  with  the  fluctatlons 
in  value,  that  it  Is  always  preferable  to  state  the 
bargain  fully  to  an  attorney  jointly  agreed  on  and 
whose  compensation  is  not  made  contingent  on  the 
sale,  and  to  have  him  place  the  bargain  in  such  form 
as  will  express,  without  fiction  or  verbiage,  the  real 
intention  of  the  parties. 

Lease  and  Option. 

Perhaps  the  most  usual  and  in  most  instances 
the  preferable  form  of  executory  sale  is  that  of  Lease 
and  Option. 

At  the  end  of  the  lease  in  the  usual  form  (p. 
285),  but  just  preceding  the  final  or  testamentary 
paragraph,  proceed  as  follows: 

THE  OPTION. 

And  in  consideration  of  the  acceptance  of  the  fore- 
going lease  and  the  expenditures  to  be  made  thereunder  and 
the  well  and  faithful  keeping  of  the  covenants  thereof,  the 
said  lessee  shall  have  the  right  to  purchase  the  said  de- 
mised premises  by  payment  of  the  sum  of  ten  thousand 
dollars  on  or  before  the  first  day  of  May,  A.  D.  1908,  time 
being  of  the  essence  of  the  contract  as  to  such  payment. 
And  upon  the  tender  of  such  payment  the  lessor  will  make, 
execute,  acknowledge  and  deliver  at  his  own  cost  and 
charges,  good  and  sufficient  deed  or  deeds  of  warranty  to  be 
delivered  to  the  lessee  or  such  person  or  company  as  he 


CONVEYANCE.  281 

shall  nominate,  conveying  the  said  premises  clear  of  incum- 
brance. 

The  forfeiture,  surrender  or  termination  of  the  above 
lease  for  any  cause  shall  render  this  option  void,  and  the 
above  mentioned  payment  may  not  thereafter  be  tendered. 

In  the  above  form  the  covenants  of  the  lease 
make  a  valid  consideration  for  the  option.  In  the 
absence  of  a  clause  defeating  the  option  on  forfeiture 
of  the  lease  the  option  may  be  enforced  although  the 
lease  has  been  forfeited. — Mathews  Co.  v.  New  Em- 
pire Co.  122  F.  972. 

An  agreement  to  work  a  mine  is  good  consid- 
eration for  a  promise  to  sell  it. — Clarno  v.  Grayson, 
46  P.  426.  It  follows  that  the  acceptance  of  a 
working  lease  is  good  consideration  for  an  option 
on  the  same  property,  and  the  combination  of  the 
two  contracts  in  the  same  or  by  distinct  papers  Is 
of  common  occurrence.  See  Form,  page  280. 

Time,  though  made  the  essence  of  the  contract, 
may  be  waived  or  relieved  against  in  equity  upon 
proper  facts.— Wheeling  Co.  v.  Elder,  46  8.  E.  557. 

Escrow. 

Where  a  title  bond  or  other  executory  contract 
is  delivered  it  is  usually  accompanied  by  a  deed  exe- 
cuted and  acknowledged  and  placed  In  escrow.  An 
escrow  amounts  to  a  deposit  with  a  third  party  of 
an  unrecorded  deed  to  be  delivered  on  certain  con- 
ditions, the  title  bond  or  other  executory  contract 
being  actually  delivered  and  held  in  the  meantime. 
Such  escrow  is  usually  In  the  shape  of  a  deed  en- 
closed in  a  sealed  envelope  and  endorsed  as  follows: 

To  WM.  B.  MORRISON,  CASHIER,  NATIONAL  BANK  OP 
COMMERCE,  Denver:  You  are  authorized  to  deliver  the 
within  deed  to  Thomas  F.  Walsh,  his  agent,  or  order,  upon 
payment  to  me,  or  deposit  to  my  order,  of  the  sum  of 
ten  thousand  dollars,  on  or  before  the  first  day  of  January, 
A.  D.  1908.  Meanwhile  you  will  hold  the  same  irrevocably. 
If  payment  is  not  made  on  or  before  said  date,  you  will 
return  the  same  to  me  for  cancellation. 

Sept.  SO,  1907.  LUTHER  M.  GODDARD. 

An  escrow  is  often  placed  on  deposit  without 
any  title  bond,  or  the  agreement  is  delivered  on  con- 


282  CONVEYANCE. 

dition  of  not  going  on  record,  the  vendor  objecting 
to  clouding  the  title  by  recording  executory  agree- 
ments which  will  perhaps  never  result  in  conveyance. 
Such  an  escrow  or  agreement  (not  recorded)  if  on 
good  consideration,  is  valid  in  all  respects,  except 
that  of  giving  the  purchaser  record  security. — Wol- 
cott  v.  Johns,  7  Colo.  App.,  861.  The  deed  relates 
back  to  the  date  of  the  Escrow  agreement  as  to  all 
who  had  notice  of  the  Escrow. — Whitmer  v.  Schenk, 
83  P.  115  (Ida.). 

Unrecorded  Claim. 

An  incomplete  location  may  be  transferred  by 
parol  and  the  record  completed  by  the  purchaser. — 
Doe  v.  Waterloo  Co.  10  F.  Jf56;  Miller  v.  Chrisman, 
18  P.  1083.  A  prospect  on  the  public  domain  may 
be  the  subject  of  lease  or  conveyance. — Weed  v. 
Snook,  11  P.  1023. 

Acknowledgments  to  Contracts. 

No  instrument  needs  acknowledgment  except 
such  as  Is  intended  to  be  placed  of  record;  if  an  in- 
strument is  recorded  without  acknowledgment,  it 
may  be  valid  as  notice,  but  the  original  must  be  pro- 
duced or  accounted  for  when  used  in  evidence — a 
certified  copy  is  not  evidence.  An  acknowledgment 
is  not  a  part  of  the  instrument,  but  supplies  a  mode 
of  proving  its  execution  without  witnesses  and  for 
obtaining  a  valid  copy  when  lost  or  mislaid. 

Fraudulent  Sale. 

Where  a  sale  has  been  induced  by  fraud  the  in- 
jured party  may  either  rescind  or  sue  for  damages. 
—Byard  v.  Holmes,  33  N.  J.  L.  119;  6  M.  R.  598; 
Smith  v.  Bolles,  16  M.  R.  159;  132  U.  S.  125. 

If  he  do  neither,  but  continue  to  exercise  acts 
of  ownership  over  the  property  purchased,  he  may 
be  estopped  even  to  plead  the  false  representations 
to  an  action  on  the  contract. — Butler  v.  Rockwell, 
14  Colo.  126. 


CONVEYANCE.  2s3 

The  right  to  rescind  must  be  exercised  at  once 
upon  discovery  of  the  fraud.  Buyers  of  a  mine  can- 
not after  such  alleged  discovery  work  the  property 
and  thereafter  elect  to  rescind. — Richardson  v.  Lowe, 
149  F.  625;  Old  Colony  Co.  v.  CarricU,  15S  F.  178. 
The  absence  of  prompt  action  to  rescind  is  an  elec- 
tion to  affirm. — Steinbeck  v.  Bon  Homme  M.  Co.  152 
F.  SSS. 

Proof  is  admissible  that  defendant  had  attempted 
to  salt  the  same  mine  on  other  persons. — Mudsill  Co. 
v.  Watrous,  61  F.  163.  Sale  of  worthless  stock 
may  be  set  aside  on  like  principles  as  the  sale  of  the 
mine. — Ormsby  v.  Budd,  S3  N.  W.  451.  False  repre- 
sentations made  by  officer  are  not  necessarily  charge- 
able to  the  company. — Watson  Co.  v.  James,  Id.  622. 
A  party  is  bound^  where  he  assumes  to  know  and 
makes  assertions  acordingly. — Lehigh  Co.  v.  Barn- 
ford,  150  U.  8.  665. 

Assertions  of  value  are  as  a  rule  only  expres- 
sions of  opinion. — Id.  But  otherwise  as  to  state- 
ments that  the  lands  sold  include  a  certain  ore  bed. 
—Chatham  Co.  v.  Moffatt,  16  M.  R.  103;  147  Mass. 
403.  And  opinions  and  promises  (false  averments  of 
large  means  and  extensive  operations  intended)  may 
amount  to  actual  fraud. — Rarer  Co.  v.  Trout,  83  Va. 
397.  The  same  as  to  promises  never  intended  to  be 
performed. — Lawrence  v.  Gayetty,  78  Cal.  126. 

A  party  cannot  cover  up  a  fraud  by  using  his 
wife's  name. — Largey  v.  Bartlett,  J4  P.  962. 

The  parties  will  not  be  allowed  to  stand  by  and 
await  the  result  of  the  adventure  before  suit. — Blen 
v.  Bear  River  Co.  3  M.  R.  435;  20  Cal.  602. 

Delay  without  sufficient  excuse  bars  the  remedy. 
— Great  West  Co.  v.  Woodmas  Co.  14  Colo.  90. 

The  right  to  set  aside  a  sale  for  fraud  does  not 
survive  against  executors. — Stratton's  Ind.  v.  Dines, 
126  F.  968;  135  F.  449.  Where  an  agent  buys  a 
mine  for  less  than  he  reports  to  his  principal  he  is 
liable  for  the  difference  to  his  principal  in  assumpsit. 
—Humbird  v.  Davis,  59  Atl.  1082. 


284  MINING  LEASE. 

And  between  associates  none  can  secure  a  secret 
profit  on  the  sale.  Recovery  in  such  case  does  not  de- 
pend on  proof  of  actual  fraud. — Sun  Dance  Co.  v. 
Frost  64  P.  435;  21  M.  R.  252;  Upton  v.  Weisling,  11 
P.  917;  Christy  v.  Campbell,  87  P.  548. 

A  purchaser  is  not  chargeable  with  notice  of  his 
vendor's  fraud  in  his  original  purchase. — Kendrick 
v.  Colyer,  42  80.  110.  A  party  who  by  his  own  act 
prevents  the  completion  of  an  act  of  appropriation 
can  take  no  advantage  of  his  own  wrong. — Wolfskill 
v.  Smith,  89  P.  1001. 


MINING  LEASE. 


Written  or  Verbal. 

The  lease  if  for  more  than  one  year  must  be  in 
writing  to  avoid  the  Statute  of  Frauds.  (R.  S. 
§  2662.)  If  for  a  less  period  it  is  still  often  reduced 
to  writing  and  the  covenants  being  peculiar  cannot 
be  too  particularly  expressed.  The  actual  possession 
taken  by  the  lessee  being  notice  of  his  rights,  the 
lease  generally  is  neither  acknowledged  nor  recorded. 

Under  an  ordinary  surface  lease  at  a  fixed  rent 
the  tenant  has  no  right  to  sink  an  oil  well. — Isom  v. 
Rex  Oil  Co.  82  P.  317. 

Set  Work. 

In  large  mines  worked  on  the  tribute  system, 
the  lease  is  usually  verbal  between  the  manager  and 
the*  miner,  and  is  more  in  the  nature  of  a  contract 
of  hiring,  the  foreman  retaining  general  control  of 
the  work. 

Dead  Work. 

The  following  form  is  correct  to  the  extent  of 
the  usual  covenants,  but  there  are  often  special- 
covenants  added  in  regard  to  "dead  work"  and  other 
matters.  Dead  work  is  a  term  of  the  popular  lan- 
guage and  means  sinking  shafts  and  running  drifts, 


MINING  LEASE.  285 

adits  or  cross-cuts,  or  it  may  embrace  everything  ex- 
cept stoping  and  the  timbering  incidental  to  stoping. 
Its  meaning  being  so  general  it  should  not  be  used 
at  all  in  the  instrument  and  the  intention  should  be 
covered  by  more  exact  expressions. 

It  is  a  common  stipulation  to  require  no  royalty 
for  ore  extracted  in  sinking  or  in  driving  levels. 
Where  dead  work  is  to  be  paid  for,  care  should  be 
taken  to  express  whether  the  compensation  is  to 
come  "out  of  the  first  mill  returns"  or  "out  of  the 
royalty."  In  the  latter  case  the  lessor  pays  for  all 
of  it.  In  the  former  he  pays  a  share  equivalent  to 
his  proportion  of  the  proceeds. 

The  Royalty  Reserved  Necessarily  Varies,  20  or  25 
per  cent,  being  the  usual  amount,  and  5  and  75  per 
cent,  being  extreme  limits. 

FORM    OF    LODi:    LEASE. 

Tins  INDENTURE,  made  this  flrst  day  of  May,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  seven,  be- 
tween !>'  .  Stilt*  «f  \<ir  7df t,  /  -7 

fVA/fessor,  an(1  lrtlnk  1L  £/„„„.  llf  Colorado. 

:     \Vitn. -sseth.    that    the  sai.l    l.-ss-.r.    f,,r  and 
^cnseration   of   the   royalties   hereinafter   reserved   and      ,  > 

•  •nts  hereinafter  expressed,  and  by 

the  said  lessee  to  be  kept  and  perform* d,  hath  granted!, 
demised,  and  let  and  by  these  presents  doth  grant,  demise 
and  let  unto  the  said  lessee  all  the  :  dcgejjhfld  mine 

gfif  mining  propfrty.  situate  in  /••//;•  \lilr  Minim*  l>i>-rict. 
Bounty  of  /,'  it:  The  Oir/  Binl 

Love  Mining  Claim.  N»rr«j/  l.nt  No.  Tit,  together  with  the 
appurtenances. 

To  have   and   to   hold   unto  the  said   lessee,   for   the 

term  of  one  year  from  date  hereof,  expiring  at  noon  on  the 

»AV  1st  day  of  May,  1908,  unless  sooner  forfeited  or  determined 

through   the  violation   of  any   covenant   hereinafter  against 

the  said   tenant   reserved. 

And  in  consideration  of  such  demise,  the  said  lessee 
covenant  and  agree  with  said  lessor  as  follows,  to  wit: 
.  .      1.     To  enter  upon  said  mine,  or  premises,  and  work 
the  same   mine   fashion,   in   manner  necessary  to  good   and 
economical  mining,  so  as  to  take  out  the  greatest  amount  of 
ore  possible,  with  due  regard  to  the  development  and  pres- 


ervatlon  of  the  same  as  a  workable  mine,  and  to  the  special 
covenants   hereinafter   reserved. 

2.  To  work  and  mine  said  premises  as  aforesaid 
steadily  and  continuously  from  the  date  of  this  lease  with 
at  least  two  persons  employed  underground,  for  at  least  20 
shifts  to  the  man  each  calendar  month. 


286  MINING  LEASE. 

3.  To  well   and  sufficiently   timber  said  mine  at  a  . 
points  where  proper,   In  accordance  with  good  mining;   and 
to  repair  all   old  timbering  wherever  it  may   become   neces- 
sary. 

4.  To  allow  said  lessor  and  his  agents  from  time  to 
time,    to    enter    upon    and   into  all    parts   of   said   mine   for 
purposes    of   inspection. 

5.  To   not   assign   this   lease   or  any   interest   there- 
under,   and    to   not    sublet    the   said    premises    o*    any    part 
thereof,   without  the   written   assent   of  said   lessor,   and  to 
not  allow  any  person  not  in  privity  with  the  parties  hereto, 
to   take   or   hold   possession   of  said   premises,    or   any   part 
thereof,  under  any  pretence  whatever. 

6.  To   occupy   and   hold  all    cross  or   parallel    lodes, 
spurs   or  mineral   deposits   of   any   kind   which   may   be   dis- 
covered   by    the   said    lessee,    or    any    person    under    him,    in 
any    manner,    by    working    within,    or    from    the    demised 
ground,    as    the    property    of    said    lessor   with   privilege    to 
said  lessee  of  working  the  same  as  parcel  of  said  demised 
premises. 

7.  To   keep  at  all   times  the  drifts,   shafts,   tunnels 
and   other   workings   thoroughly   drained  and   clear  of  loose 
rock  and  rubbish,  unless  prevented  by  extraordinary  mining 
casualty. 

?.     To  do   no   underhand    stoplng,    and   to   make   all 
feet  long  by  4  feet  wide  in  the  clear,  and  all  drifts 
6  feet  high  by  4  feet  wide  In  the  clear. 

0.  To  pay  to  snld  lessor  as  royalty  25  per  cent,  of 
the  net  mill  returns  of  all  ore  to  .be  extracted  from  said 
premises  by  delivery  of  such  ore  with  all  convenient  speed 
In  lots  as  mined  to  some  mill  or  repulnr  ore  buyer  In 
Denver  or  Pueblo,  and  leaving  with  such  mill  or  ore  buyer 
the  percentage  of  mill  returns  aforesaid  for  delivery  to  the 
lessor. 

10.  To  deliver  to  said  lessor  the  said  premises  with 
the  appurtenances,  and  all  improvements  In  good  order  and 
condition,  with  all  drifts,  shafts,  tunnels  and  other  passages 
thoroughly   clear    of    loose    rock    and    rubbish,    and    drained, 
and   the  mine   1'eady  for   immediate  continued  working: 
cident  not  arising  from  negligence  alone  excusing)   without 
demand  or  further  imtico,  on  the  said  1st  day  of  May,  A.  D. 
1908,   at   noon,   or   at   any   time   previous,   upon   demand   for 
forfeiture. 

11.  And  finally,  that  upon  violation  of  any  covenant 
or  covenants   hereinbefore  reserved,   the  term   of  this   lease 
shall,  at  the  option  of  the  said  lessor,  expire,  and  the  same 
and    said    premises,    with    the    appurtenances,    shall    become 
forfeit   to   said    lessor ;    and   sala   lessor   or    his   agent   may 
thereupon,    after    demand    of    possession    In    writing    enter 
upon  said  premises  and  dispossess  all  persons  occupying  the 
same,   with   or  without  force   and  with   or   without   process 
of  law  ;  or  at  the  option  of  said  lessor  the  said  tenant  and 
all  persons  found  in  occupation  may  be  proceeded  against  as 
guilty   of  unlawful   detainer.      (Here  insert  option,  p.   280.) 


MINING  LEASE.  287 

Each  and  every  clause  and  covenant  of  this  Inden- 
ture shall  extend  to  the  heirs,  .executors,  administrators 
and  lawful  assigns  of  all  parties  hereto. 

In  witness  whereof,  the  said  parties  have  hereunto 
set  their  hands  and  seals. 

DEXTER  G.  GABOON.          [SEAL.] 
FRANK    H.    STANWOOD.     [SEAL.] 

.•icknowledgment.    if   desired,   see   p.  267. 

Special  Covenant  Against  Miners'  Liens. 

8  a.  To  promptly  pay  for  all  labor  and  supplies  to 
be  done  for,  or  furnished  to,  the  said  lessee  or  anv  person 
or  persons  under  or  in  privity  with  him  upon  said  prem- 
ises, and  to  deliver  to  the  lessor  on  or  before  the  fifteenth 
day  of  each  calendar  month  during  the  term  of  this  lease, 
a  written  statement  showing  that  all  labor  and  supplies 
have  been  paid  for,  or  the  amount  due  and  owing  for  such 
labor  and  supplies  ;  and  if  any  lien  be  filed  or  if  any  such  . 
report  shows  any  part  of  the  pay  roll,  or  other  mine 
Indebtedness  unpaid,  or  if  such  Indebtedness  exist,  whether 
shown  by  such  report  'or  otherwise,  the  lessor  may,  at  his 
election,  declare  a  forfeiture  of  this  lease  as  hereinafter 
provided. 

Covenant  to  Keep  Notice  Posted. 

To   at    all    times  keep   and   maintain   posted   on    said 
-  :ich  claim   thereof  a  notice  in  substance,  as 
\vs  : 

For  form  of  notice  see  page  265. 

On  low  grade  lodes  reservations  of  a  graded 
royalty  are  common.  In  such  case  discard  covenant 
9  above  printed  and  insert: 

Covenant  for  Graded  Royalty. 

9.  To  pay  to  said  lessor  as  royalty  10  per  cent,  of 
the  net  mill  returns  of  all  ore  to  be  extracted  from  said 
premises  running  30  ounces  of  silver  or  under  to  the  ton  ; 
20  per  cent,  on  ore  running  over  30  and  not  exceeding  50 
ounces  to  the  ton  :  30  per  cent,  on  all  ore  running  over  50 
ounces — by  delivering  all  the  ore  in  lots  as  mined  to  some 
mill  or  to  some  regular  ore  buyer  in  Denver  or  Pueblo  and 
leaving  with  such  mill  or  ore  buyer  the  several  percentages 
of  mill  returns  as  aforesaid  for  delivery  to  lessor. 

Estimate  of  royalty  after  deducting  freight  and 
mill  charges  is  said  to  be  based  on  the  "net"  mill 
returns.  Where  the  royalty  is  much  graded  and 
made  dependent  on  the  amount  of  lead  or  copper 
as  well  as  silver  or  gold,  the  more  simple  form  is  to 
reserve  it  on  the  "price  per  ton"  paid  by  the  ore- 


288  MINING  LEASE. 

buyer,  which  is  90  to  95  per  cent,  of  the  bullion  and 
base  metal  value,  after  deducting  treatment  charges; 
but  in  the  "price  per  ton"  the  freight  has  not  been 
estimated. 

Royalty  on  Price  Per  Ton. 

9.  To  pay  to  said  lessor  as  royalty  10  per  cent,  of 
the  net  mill  returns  of  all  ore  sold  for  $20  per  ton  or  less, 
net  price  after  deducting  freight  and  mill  charges,  and  20 
per  cent,  of  the  like  net  mill  returns  of  all  ore  sold  for  more 
than  $20  per  ton  net  price  as  aforesaid  by  delivering  all 
the  ore  in  lots  as  mined  to  some  mill  or  to  some  regular 
ore  buyer  in  Denver  or  Pueblo,  and  leaving  with  such  mill 
or  ore  buyer  the  several  percentages  aforesaid  for  delivery 
to  the  lessor. 

Net  mill  returns  are  the  sums  paid  for  the  values 
in  the  ore  -after  deducting  all  charges  for  carriage  in 
any  form,  assays  and  mill  charges. 

Freight  is  paid  on  the  gross  weight  and  the  ore 
paid  for  on  the  net  weight. 

The  mill  returns,  upon  which  settlement  between 
lessor  and  lessee  are  made,  are  substantially  accord- 
Ing  to  the  following  form: 


MINING  LEASE. 


.a*    ^T 

l.-l 

^    g 


a>  i— i  w 

5  Si  3  s 

*a£  §  3 

P       . 


3 


3 

"S 

= 

I 


I 


10 


aoj,  J»d  eopj 


PPM 


899  anQ 


880Jf) 

spanoj 


•ON 

ond 


3 


19.20 
9.60 
21.68 


^fl:£ 

:«§o 
.-^13  S 

•  *SJE 

s  :S|! 

I  sir: 

o  &*H« 
^  •<£-& 
S  ^Is55 

I  111 
fi  ll|l 


£J 

a 

to 

00 

i 

0> 

£ 

to 

9" 

ri 

«D 

PQ 

00 

I, 


w 

111 

<  g^ 

3- 


a 


i:- 
2  li 


290  MINING  LEASE. 

PLACER    LKASK. 

Follow  the  above  form  except  in  the  description 
and  the  numbered  covenants  which  may  be  as  fol- 
lows: 

Description. 

The    Yellow    Bug    Placer    Mining   Claim,    Survey    Lot 
No.  88,  and  300  inches  of  water  in  the  Arapahoe  ditch. 

Covenants. 

1.  To  enter   upon  said  mine   or   premises   and   work 
the  same  so  as  to  take  out  the  greatest  possible  amount  of 
gold  with  due  regard  to   the  development  and   preservation 
of  the  unwashed  ground   for   future  continued  working  and 
to  the  special   covenants  hereinafter   reserved. 

2.  To    work    and    wash    said    premises    steadily    and 
continuously  from   the  date  of  this   hTTsc  with  a  force  of  at 
least  two  men  and  with   ns  much   of  said  water  as  can   !>•' 
obtained  and  used.     Cessation  of  work  for  th<>  total  numlirr 
of  three  secular  days   in   any  one  calendar  month   sha*ll    !><> 
considered  a  violation  of  this  covenant.     Hut  no  work  sli:\ll 
be  required  while  the  ground   is  frozen. 

3.  To  take  care  of  the  dump  and  tailings  so  a- 
prevent  their  accumulation  upon  any  ground   «>f   tin*    i> 
remaining   unworked. 

4  and  5.     Same  ns  lode  lease. 

6.  To  clean  up  the  gold  not  oftener  than  ou< •<•  every 
two  weeks  and  at  least  as  often  as  once  in  four  w.-i-ks  ami 
to  give  48  hours'   notice  to  lessor  of  the  date  intended  for 
clean  up,  and  at  each  clean  up  lessor  shall   have  th««   right 
to  be  personally  present  or  to  send  some  one  person  to  n r 
resent  him  and  be  present  and  assist  at  such  clean  up  and 
at    the  retorting  of   the   amalgam   and   the  weighing  of  the 
retort,  and  to  make  no  clean  up,  partial  or  general,  without 
giving   such    notice. 

7.  To  pay  ns  royalty   to   the   lessor  25  per   cent,   of 
the  gross  proceeds  of  working  under  this  lease  by  delivery 
immediately  after  each  clean  up*  of  the  whole  of  the  retort 
to  the  lessor  or  to  his  agent  present  on  the  ground,  and  the 
said    lessor   covenants    forthwith    to   cause    the   sarm>    t«»    !••• 
shipped    to   the   mint    at    Denver    or    to   some    regular    gold 
buyer  at  Fairplay  or  Denver  and  to  return  to  lessee  75  per 
cent,   of  the  net  proceeds. 

8.  To  deliver  to  said  lessor  the  said   premises  with 
the    appurtenances    in    good    order    and    condition    and    the 
ground  and   water   ready   for   immediate   continued   use   and 
working  without  demand  or  notice  on  said  first  day  of  May. 
A.    D.    1000,    or    at    any    time    previous    upon    demand    for 
forfeiture. 


MINING  LEASE. 

Second  Form  of  Royalty  Covenant. 
After  the  *  proceed  as  follows: 

To  the  lessor  or  to  his  agent  present  on  the  ground. 
of  one-quarter  by  weight  of  the  amalgam  or  of  the  retort 
;is  he  may  elect. 

Third  Form  of  Royalty  Covenant. 
After  the  *  proceed  as  follows: 

Of  25  per  cent,  of  the  net  mint  returns  «T  proceeds 
of  sale  to  some  regular  gold  buyer  at  Fairplay  or  Denver 
for  use  of  the  lessor. 

Covenant  to  Work. 

Where  royalty  is  reserved  ia  the  usual  form 
there  is  an  implied  covenant  to  keep  at  work. — 
Rarer  Co.  v.  Trout,  5  Am.  St.  /,'.  585;  Aye  v.  Phila- 
delphia Co.  44  -AM-  555.  Otherwise  where  there  is  a 

1  rent,  or  a  rent- based  on  an  assumed  minimum 
production. — Mclntyre  v.  Mclntyre  Co.  11  N.  E.  '•'/> 

The  ordinary  covenant  to  "take  out  the  greatest 
amount  of  ore  possible"  is  enforceable  as  such  and  is 
not  a  mere  condition.  The  measure  of  damages  in 
such  case  would  depend  on  the  amount  of  ore  that 
could  have  been  mined  with  reasonable  diligence. — 
Macon  v.  Trowbridge.  87  P.  I 

And  for  failure  to  comm« •!!••••  work  in  a  reason- 
able time  the  lease  may  be  cancelled. —  M'lntnsh  v. 
Robb,  8<S  P, 

For  breach  of  covenant  the  lessor  may  elect  be- 
tween forfeiture  and  damages. — Brooks  v.  Oafflu,  .'"/ 
S.  W.  808. 

An  agreement  to  work  is  not  necessarily  an 
agreement  to  work  «>ntinumisly. — Caley  v.  Portland. 
56  P.  350.  Failure  to  start  work  is  same  as  quit- 
ting.—Woodward  v.  Mitchell  39  N.  E.  439.  A  parol 
agreement  as  to  what  shall  be  considered  sufficient 
work  is  binding  on  lessor  and  his  grantees. — Bartley 
v.  Phillips,  36  Atl.  IfT. 

To  recover  substantial  damages  against  a  lessee 
failing  to  work,  the  plaintiff  must  show  that  the  ore 
could  have  been  mined  to  a  profit. — Colo.  F.  Co.  v. 
Pryor,  57  P.  51. 


292  MINING  LEASE. 

Construction  of  long,  formal,  coal  mine  lease  as 
to  right  to  replace  machinery  and  fixtures,  change 
plan  of  approaches,  abandon  old  workings,  etc. — 
Junction  M.  Co.  v.  Springfield  M.  Co.  78  N.  E.  902. 

A  lessee  is  not  bound  under  covenant  to  return 
in  as  good  condition  as  when  received,  to  restore 
buildings  accidentally  destroyed  by  fire.  Id. 

There  are  many  cases  which  hold  that  breach  of 
covenant  to  work  is  excused  when  the  ore  in  the 
mine  becomes  exhausted. — Brooks  v.  Cook,  S4  So. 
960;  22  M.  R.  456;  Wilson  v.  Big  Joe  Co.  112  N.  W. 
89. 

Right  to  Quit.     - 

Under  the  covenant  to  work  in  the  above  forms, 
the  lessee  has  no  right  to  quit  at  discretion.  If 
such  right  is  to  be  given,  as  in  most  instances  of 
common  equity  it  should  be  given,  insert  after  the 
second  covenant: 

"The  said  lessee  reserving  the  right  to  quit  .-mil 
abandon  after  at  least  two  months'  continuous  work  under 
this  covenant." 

or  as  the  case  may  be.  When  the  party  quitting  is 
to  give  notice  it  is  not  always  material  that  it  be 
given  in  the  manner  stipulated. — McCahan  v.  Whnr- 
ton,  121  Pa.  424:  16  M.  R.  239.  The  lessee  may  quit 
at  will  under  a  lease  containing  no  covenant  to  work. 
—Glasgow  v.  Chartiers  Co.  25  Atl.  282;  11  M.  R.  523. 

Co-Tenant  Owners — Partnership  Lessees. 

The  legal  relation  of  co-lessees  is  that  of  part- 
ners.— Meagher  v.  Reed,  14  Colo.  350;  Manville  v. 
Parks,  7  Colo.  128;  15  M.  R.  565.  One  of  such  co- 
tenants  or  co-partners  cannot  give  a  lease  of  the 
whole  mine  technically  binding  on  all  the  co-owners, 
but  where  they  cannot  agree  as  to  mode  of  working, 
a  majority  interest  must  control. — Dougherty  v. 
Creary,  30  Cal.  290;  1  M.  R.  36;  Blackmarr  v. 
Williamson,  50  S.  E.  254.  In  Paul  v.  Cragnas,  ~M 
P.  857;  60  P.  983,  the  lessee  of  a  third  interest 
was  allowed  heavy  damages  against  the  majority 


MINING  LEASE.  293 

owner  disputing  his  right  to  enter  and  mine.  We 
cannot  gather  from  the  opinion  upon  what  theory 
this  anomalous  case  was  decided.  BELKNAP,  J.,  dis- 
sented. It  was  not  based  on  plaintiff's  right  to  a 
third  of  the  profits. 

Assessments — Forfeiture  to  Co-Partner. 

An  assessment  is  defined  in  Shaw  v.  Homer,  7 
Colo.  App.  83,  as  "an  apportionment  among  the  par 
ties  interested,  of  an  amount  of  money  necessary  and 
not  on  hand  for  development  purposes."  It  must  be 
levied  by  one  having  authority,  each  partner  must 
have  notice  of  it  and  a  forfeiture  does  not  ensue 
for  failure  to  pay  unless  there  is  some  contract  to 
that  effect.  Such  a  contract  was  enforced  in  Joseph  v. 
Davenport,  89  N.  W.  1081. 

Fixtures. 

Unless  otherwise  covenanted  the  fixtures  belong 
to  the  lessee  and  are  removable. — Conrad  v.  Saginaw 
Co.  20  N.  W.  39;  52  Am.  R.  817.  And  this  applies  to 
a  forfeited  lease. — Mickle  v.  Douglass,  89  N.  W.  198. 
A  mortgage  on  fixtures  was  held  good  after  forfeit- 
ure in  Alberson  v.  Elk  Creek  Co.  65  P.  979. 

The  casing  of  an  oil  well  is  not  a  removable  fix- 
ture.— Perry  v.  Acme  Oil  Co.  80  N.  E.  174.  But  may 
be  made  so  by  the  contract. — Churchill  v.  More,  88  P. 
t90. 

Letting  by  Agent. 

The  agent  in  cliar.^*  has.  under  his  general  and 
implied  powers,  the  right  to  let  short  leases  of  the 
ground,  in  blocks  or  parcels. — Bicknell  v.  Austin  Co. 
62  F.  432. 

And  though  unauthorized  to  lease,  if  the  com- 
pany stand  by  and  allow  the  lessee  to  spend  money, 
they  will  be  bound. — Hoosac  Co.  v.  Donat,  10  Colo. 
529. 

Assignment. 

A  lessee  is  not  in  general  released  from  personal 
liability  by  assigning  his  lease;  but  remains  in  the 


204  MINING  LEASE. 

nature  of  a  surety  to  his  landlord. — Pittsburg  Co.  v. 
Greenlee,  30  Atl.  489;  Wilson  v.  Gerhardt,  9  Colo.  585. 

A  Non-Assessable  Interest  in  a  lease  is  an  interest 
chargeable  with  its  full  share  of  all  cost  of  mining, 
as  well  as  of  freight  and  treatment  as  far  as  the  ore 
proceeds  will  pay  such  cost,  but  not  chargeable  in 
case  of  working  to  a  loss.  The  decision  in  Maloney 
v.  Love,  11  Colo.  App.  288,  holding  it  entitled  to  a 
full  share  of  the  gross  proceeds  is  wholly  against 
the  meaning  of  the  term  as  understood  by  miners. 

In  Taylor  v.  Thomas  (Colo.),  11  P.  382,  a  non- 
assessable interest  in  a  lease  was  charged  with  its 
full  proportion  of  expenses  to  the  extent  of  the  ore 
proceeds.  This  decision  necessarily  overrules  the 
Maloney  case. 

Forfeiture. 

Unless  the  lease  provide  for  forfeiture  none  oc- 
curs for  non-payment  of  rent  or  breach  of  covenant. 
—Plummer  v.  Hillside  Co.  W't  F  208;  Wakefteld 
v.  Sunday  Lake  Co.  Jf9  N.  W.  135.  A  forfeiture  en- 
forced by  collusion  with  employes  of  lessee  is  not 
lawful. — 49  N.  W.  135.  Forfeiture  cannot  be  en- 
forced by  a  party  who  is  himself  in  default. — Ingram 
v.  Golden  Co.  65  P.  5J/9. 

Draining  and  pumping  is  counted  as  labor  under 
a  covenant  to  keep  at  work. — Miller  v.  Chester  Co.  t8 
Atl.  565. 

Where  parties  have  acted  loosely  in  complying 
with  the  terms  of  lease  the  lessor  cannot  abruptly  be- 
come strict  and  declare  a  forfeiture. — Westmoreland 
Co.  v.  De  Witt,  IS  Atl  7«4;  Hukill  v.  Myers,  15  8.  E. 
151;  Price  v.  Black,  101  N.  W.  1056. 

In  Montrozona  Co.  v.  Thatcher,  15  P.  595,  a 
lease  was  held  forfeited  for  ten  days'  delay  beyond 
the  time  limited  to  sink  100  feet.  This  seems  a 
severe  ruling. — Mathews  Co.  v.  New  Empire  Co.  122 
F.  912;  Jones  v.  Scott,  58  Atl.  281. 

When  forfeiture  is  provided  for  on  account  of 
certain  breaches,  there  is  no  forfeiture  for  other 


MINING  LEASE. 

breaches;  and  none  for  breach  of  implied  covenants. 
— Cove  v.  N.  Y.  Co.  /.:  >  /:.  t9S;  Rose  v.  Lain/on  /. 
Co.  1  't  P. 

Miscellaneous  Decisions. 

An   advertisement,    bid    and   acceptance   make   a 

plete  agreement  for  a  lease. — Cochrane  v.  Justice 
Co.  16  Colo.  415.  And  the  lessor  cannot  after  sucn 
proceedings  insist  on  new  and  arbitrary  terms. — Id. 

Under  a  mining  lease  covenanting  to  pay  a  cer- 
tain   royalty  and   that  it  shall  amount  to  at  least  a 
given  sum,  lessees  are  not  liable  if  after  full  testing 
no  merchantable  ore  is  found. — Gibben   v.  Atki/i^ 
15  M.   K.  \      \V.   / 

Whether  a  lease  has  been  extended  is  a  ques- 
tion of  fact  which  the  Court  cannot  take  away  from 
the  jury.— lfi,l.ih-  r.  Mellon,  M  .!//.  .",/. 

A  tenant  cannot  take  leases  of  two  hostile  titles 
and  then  compel  his  lessors  to  interplead. — Standley 
v.  Roberts,  59  F.  836. 

A  lessee  attempting  to  relocate  the  ground  for- 
feits all  rights  under  his  lease. — Silver  City  Co.  v. 
Lowry,  51  P.  11;  Affd.  /7,'J  V.  -S 

A  lease  of  a  mining  shaft  means  not  only  the 
shaft  but  the  ground  acessible  through  such  shaft. — 
Wesling  v.  KroU,  J7  N.  W.  944. 

The  receipt  of  royalty  admits  the  validity  of  the 
lease.-— Bicknell  v.  Austin  Co.  62  /  /  linrkhard 
v.  Mitchell  16  Colo.  316. 

Waiver  of  conditions  may  be  shown  by  parol. — 
Equator  Co.  v.  Guanella,  18  Col>  Ilis  v.  Noyes. 

i :  x.  W.  397.  And  release  of  Royalty.— t'nurford  v. 
Bellevue  Co.  38  Atl.  595. 

Changing  terms  of  royalty   in   written   lease  by 
parol  is  valid  and  not  within  the  Statute  of  Frauds. 
-Xnnamaker  v.  Amos,  16  N.  E.  949;  13  Oh.  8t.  163. 
Oil  and  Gas  Lease. 

Follow  form  on  p.  285  to  end  of  first  paragraph. 

OIL     AND     fJAS     I.I 

To  ii  VVK  AM>  TO  HOLD  unto  the  said  lessee  for  the 
term  of  two  years  from  date  hereof  and  thereafter  as  long 
as  oil  or  gas  is  found  in  paying  quantities. 


296  MINING  LEASE. 

And  in  consideration  of  such  demise  the  said  lessee 
doth  covenant  and  agree : 

To  sink  at  least  one  well  on  the  demised  ground  to 
the  depth  of  at  least  1,000  feet  unless  oil  or  gas  In  paying 
quantities  is  found  within  a  shorter  distance. 

And  to  complete  such  sinking  within  six  months  from 
the  date  of  this  lease. 

In  default  of  the  completion  of  the  well  to  the  doptli 
aforesaid  or  until  oil  or  gas  is  found  as  aforesaid  this  l<-;is« 
shall  at  the  option  of  the  lessor  become  null  and  void  and 
the  demised  premises  shall  become  forfeit  to  the  lessor ; 
Provided  always.  That  payment  of  $100  rent  before  the 
expiration  of  said  six  months  shall  allow  another  period  of 
six  months  for  such  sinking. 

To  deliver  as  royalty  to  said  lessor  one-eighth  part 
of  all  oil  or  gas  found  in  and  saved  from  said  land. 

As  soon  as  oil  or  gas  is  found  In  paying  quantities 
the  lessee  will  forthwith  procure  and  place  on  the  premises 
tanks  and  pipes  and  all  other  necessary  plants  or  flxtm.s 
to  economically  save  the  product  of  such  well. 

The  lessee  may  sink  as  many  wells  as  he  sees  fit, 
paying  the  same  royalty,  and  shall  have  the  right  to  sub- 
divide the  ground  into  lots  or  tracts  and  sun-lease  ill-- 
whole or  any  part  of  the  demised  premises  and  all  fixtures 
are  the  property  of  the  lessee  or  his  sub-lessees  with  th<> 
right  to  remove  during  the  term  or  within  a  reasonable 
time  thereafter. 

In  case  oil  or  gas  is  found  in  paying  quantities  the 
lessee  will  keep  correct  books  of  account  snowing  the  pm 
duction  of  each  well  and  the  disposition  of  the  pro< 
thereof,  which  books  shall  be  open  to  the  inspection  of  the 
lessor  or  his  agent  during  business  hours  at  all  reasonable 
times. 

Delivery  to  any  pipe  line  or  responsible  gas  or  oil 
buyer  of  the  lessor's  proportion  of  the  products  of  the  well 
with  instructions  to  pay  to  lessor  his  one-eighth  of  the 
gross  price  shall  be  lull  compliance  with  the  above  cove- 
nant to  pay  royalty. 

In  case  oil  or  gas  is  struck  on  any  adjoining  Innd 
within  one  hundred  yards  of  the  exterior  boundary  of  the 
demised  tract  the  lessee  will  on  written  request  sink  a  well 
on  the  demised  tract  at  the  closest  available  point  to  such 
well  unless  a  well  has  been  already  started  within  two 
hundred  yards  of  such  foreign  well. 

The  lessor  on  his  part  doth  covenant  and   njrroo  that 
he  will  not  sink  or  sell  or  lease  for  sinking  or  allow  wells 
to    be    sunk   on    any    land    of   the    lessor   within    one -quarter 
mile  of  the  point  where  lessee  shall  sink  his  first  well. 
Close  with   last  two   paragraphs  on   p.   287. 
The   above   form   merely   suggests   the   principal 
points  to  be  covered  in  leases  of  this  character.    The 
terms  necessarily  vary  according  as  it  may  be  a  pros- 
pecting contract  or  a  lease  in  a  district  already  cov- 
ered  with   derricks. 


LICENSE.  297 

There  is  an  Implied  covenant  in  every  oil  and 
gas  lease  for  diligent  sinking  and  working. — Parish 
Fork  Co.  v.  Bridgeivater  Co.  42  S.  E.  655;  Aye  v.  Phil- 
adelphia Co.  20  M.  R.  /77;  ',',  Ml.  555;  and  also  to 
prevent  drainage  by  hostile  wells  in  the  vicinity. — 
—Klei>i>n*-r  r.  Lemon.  7N  M.  It.  ',<>',:  .;:,  Ml.  J0<). 

And  there  are  a  series  of  decisions,  based  on 
what  principle  we  are  at  a  loss  to  know,  but  one 
following  the  other  so  as  to  have  become  established 
law,  that  the  lessee  has  no  estate  in  the  oil  or  gas 
until  actually  discovered  in  his  well. — Venture  Co. 
v.  Fretts,  25  Atl.  132;  11  M.  R.  543;  Florence  Co.  v. 
Orman,  IS  P.  628;  Steelsmith  v.  Gartlan,  19  M.  R. 
S15;  29  8.  E.  91S;  Rawlings  v.  Armel,  79  P.  68S. 


LICENSE. 


The  material  distinctions  between  a  lease  and  a 
license  are  that 

1.  A  license  is  not  exclusive. 

2.  It   invests  the  licensee   with   no   property    in 
the  mineral  until  it  is  severed  from  the  ground. 

3.  It  may  be  revoked  at  any  time. 

4.  It   is  not  transferable. 

The  above  stated  differences  show  that  a  license 
1 1 ractically  amounts  to  a  mere  privilege  to  work  at 
the  owner's  will.  It  is  a  permission  sufficient  to  de- 
feat the  charge  of  trespass  but  is  not  that  property 
in  the  soil  such  as  parties  contracting  on  equal 
terms  for  permanent  working  naturally  bargain  for. 
On  the  other  hand,  it  is  usually  granted  without  any, 
or  for  a  nominal  consideration. 

It  has  been  held  that  a  lease  which  did 
not  bind  the  lessee  to  work  was  a  mere  license. — 
Wheeler  v.  West.  11  P.  811;  20  Id.  45;  Collins  v. 
Smith,  43  80.  838.  But  these  rulings  would  be  inde- 
fensible if  the  party  has  gone  into  possession  under 
the  implied  covenant  to  work.  In  every  lease,  verbal 
or  written,  reserving  royalty,  there  is  an  implied 


298  LICENSE. 

covenant  to  work  (See  p.  291)  and  the  express  obli- 
gation to  work  is  not  one  of  the  distinctions  between 
lease  and  license.  The  exclusive  right  to  mine  im- 
plies a  lease  and  not  a  license. — Cons.  Coal  Co.  v. 
Peers,  87  N.  E.  937;  Stinson  v.  Hardy,  41  P.  116. 

An  option  to  purchase  with  privilege  to  work  is 
a  license  coupled  with  an  interest;  and  after  ex- 
penditures made  is  irrevocable. — Hall  v.  Abraham. 
75  P.  882.  The  same  where  there  are  expenditures 
but  no  option.— Hosford  v.  Metcalf,  8Jt  N.  W.  in:,1,;  >\ 
M.  R.  198. 

The  general  nature  of  a  license  as  distinguished 
from  a  lease  or  other  like  grant  is  stated  in  Mu^ 
v.  Moses,  3  8.  C.  168;  8  M.  R.  607 ;  Doe  v.  Wood.   '.> 
M.    R.   182;   2   B   d    A.    ?.'}. 

1.  Not  Exclusive. 

The  owner  may  work  himself,  or  allow  others 
to  work  upon  the  same  ground. — Johnstown  Co.  v. 
Cambria  Co.  9  M.  R.  226;  Woodside  v.  Ciceroni.  93 
F.  1. 

2.  Passes  No  Property  or  Vested  Estate. 

A  license  is  authority  for  the  temporary  occu- 
pation of  land  or  to  enter  upon  and  do  particular 
acts  in  and  about  it.  It  creates  no  estate. — Fuhr  v. 
Dean,  26  Mo.  116;  6  M.  R.  216.  After  it  is  broken  by 
licensee  the  rock  in  a  quarry  belongs  to  him. — McKee 
v.  Brooks,  20  Mo.  .>.'<;. 

3.  Revocability. 

Although  revocable  the  owner  cannot  arbitrar- 
ily oust  the  licensee  without  compensation  for  ex- 
penditures made. — Bush  v.  Sullivan,  9  M.  R.  ,?//; 
3  O.  Greene,  3^4.  After  a  proper  revocation  the  li- 
censee has  no  title  in  what  he  continues  to  break  and 
sever. — Williams  v.  Morrison,  32  F.  117.  A  license 
once  given  continues  till  revoked. — Keeler  v.  Green, 
12  M.  R.  465;  21  N.  J.  Eg.  27.  An  executed  license 
(to  build  a  ditch)  amounts  to  a  grant. — De  Graff  en- 
reid  v.  Savage,  41  P.  902.  After  revocation  further 


PROSPECTING  CONTRACT.  299 

working  by  licensee  may  be' enjoined. — Clark  v.  Wall. 
79  P.  105$. 

4.     Not  Assignable. 

Being   only    a    personal    privilege    any    transfer 

rates  as  a  forfeiture. — Dark  v.  Johnston,  9  M.  If. 

:  55  Pa.  lGJt.  But  if  the  license  imply  a  grant  of 
the  ore  it  may  be  assigned. — Mi'skctt  r.  /////.  5  Bing. 
Y.  c.  694. 

By  One  Co-Tenant. 

As  to  whether  at  all  or  to  what  extent  the  license 
of  one  or  more  of  several  co-tenants  is  valid,  see  Job 
v.  Potion,  L.  R.  20  Eg.  84;  1}  M.  R.  329;  Tipping  v. 
Robbins,  37  N.  W.  ',  r,  :  nmalia  Co.  v.  Tabor,  16  M. 
R.  184;  IS  Colo.  41. 


PROSPECTING  CONTRACT. 


Much  litigation  has  grown  out  of  contracts  of 
this  kind  owing  to  the  loose  manner  in  which  they 
are  generally  undertaken  and  the  strong  induce- 
ments to  shirk  their  obligations  when  a  rich  discov- 

has  ueen  made. — Murley  v.  Ennis.  12  M.  R.  360; 

.    '  .inn;  Juhustonr    r.    ]{nl,in.so)i.    1!   M.    I!.   .t!H! ;   .1 

The  following  form  covers  the  legal  points 
necessary  to  be  guarded  in  this  class  of  contract: 

«;urn    ST  \  :ACT. 

hi  consideration  of  provisions  ndvnnced  to  me  by 
Albert  /;  nd  of  his  agreement  to  supply  me  from 

time  to  time,  sis  I  may  reasonably  demand  them,  with  tools, 
-ml)  and  mining  ointii  generally,  :m<l  ilu>  sum  <>t"  lifiy  <I<>1 
lars  in  bund  paid.  1  .-i-n-e  to  prospect  for  lodes  and  deposits 
in  <irn ml  « '•unity.  I  /«./».  and  to  locate  all  discoveries  which 
I  may  consider  worth  the  expenditure,  and  record  the  same 
in  the  joint  names  of  said  outfitter  and  myself,  and  in  our 
names  only,  as  equal  own*  TV 

My  time  and  labor  shall  stand  against  his  money. 
provisions,  etc.,  as  af"ivsai«l.  All  expenses  of  survey  nnd 
record  shall  be  paid  by  the  outfitter,  and  I  agree  to  make 
no  debts  on  account  of  this  agreement.  Work  <l«7ne  on 
rlaims  after  record  and  before  the  expiration  of  this  con- 


300  PROSPECTING  CONTRACT. 

tract  shall  be  considered  as  done  under  this  contract,  and 
no  charge  for  labor  or  time  shall  be  made  for  the  same. 
This  contract  shall  stand  good  during  the  whole  of  the 
summer  and  fall  of  1907  (expiring  Dec.  1st)  and  during  all 
of  that  period  I  will  not  work  or  prospect  on  my  own 
account,  or  for  any  parties  other  than  said  outfitter. 

Dated  April  1,  1907.  L.  L.  CRAPO. 

I   agree  to  the  terms  above  stated. 

ALBERT  B.    ROEDER. 

Under  the  following  form  the  prospector  is  al- 
lowed wages  and  takes  a  smaller  interest  in  lodes 
found: 

AGREEMENT  of  date  March  7,  A.  D.  1907,  between  8.  P. 
McGough,  John  F.  Tully,  and  Arthur  D.  Bullis,  outfitters, 
and  C.  H.  Picket  t,  prospector. 

WITNESSETII,  That  said  outfitters  agree  to  pay  to 
said  prospector  on  demand  seventy-five  dollars  ($75)  for  the 
purchase  of  tools  and  packing  outfit,  and  twenty-five  dollars 
($25)  for  railroad  fare  and  expenses  from  Idaho  Springs 
to  Creede,  and  to  allow  said  prospector  wages  at  three 
dollars  per  day  for  each  secular  day  after  arrival  at 
that  place,  until  November  1,  1907,  unless  this  contract  is 
rescinded  by  notice  before  that  date,  and  to  pay  all  expenses 
of  surveys  and  records  to  be  made  under  this  contract,  and 
for  powder,  fuse  and  other  mining  materials,  if  required  by 
said  prospector,  to  the  extent  of  fifty  dollars. 

And  in  consideration  of  the  premises,  said  prospector 
agrees  industriously  and  to  the  best  of  his  skill  to  prospect 
for  lodes  and  deposits  in  the  neighborhood  of  Creede  camp. 
within  the  limits  of  Hinsdale,  Rio  Grande  and  SULMI.K  li.> 
counties,  and  to  locate  and  record  all  discoveries  which  in 
his  judgment  are  worth  holding,  in  the  Joint  names  of  all 
parlies  1 1 oreto—  one-fourth  interest  to  'each. 

And  that  he  will  use  no  company  name  and  make  no 
debts  against  his  associates. 

And  that  he  will  at  least  once  each  month  report 
progress  and  all  discoveries  made,  by  letter  to  said  A.  1  >. 
Bullis. 

All  work  done  in  development  after  record  shall  be 
considered  as  work  done  under  this  agreement. 

And  said  prospector  agrees  further  not  to  prospect 
on  his  own  account  nor  for  any  other  persons  durhi£  tln« 
lifetime  of  this  contract,  and  if  at  any  time  within  one  yar 
thereafter  he  shall  become  interested  by  location  or  pur- 
chase in  any  claims  on  which  he  may  have  prospected 
under  this  contract,  he  will  allow  his  associates  to  take  nn 
equal  interest  with  himself  on  the  same  terms  and  al  the 
same  cost  at  which  he  has  acquired  such  interest. 

On  final  settlement  full  wages  are  to  be  allowed  as 
above  agreed,  but  said  prospector  shall  be  charged  with  his 
full  fourth  of  any  expenses  over  and  above  the  sums  herein 
expressed,  and  shall  account  and  pay  for  all  tools  and  sup 
plies  on  hand  when  contract  expires,  if  terminated  on  his 
notice ;  but  shall  keep  such  tools  and  supplies  if  contract 


PROSPECTING  CONTRACT.  301 

o!,  in-mined  at  outfitters'  election,  or  by  expiration  of  the 
full  term  limited,  or  by  failure,  to  remit  proper  charges 
monthly  on  demand.  And  the  said  prospector  shall  have 
no  riirht  to  quit  <>n  notice  until  he  shall  have  prospected 
t\v<.  full  months  under  this  agreement. 

Witness   the  hands  and  seals  of  said  parties. 


s.  r.  McOouoH. 
JOHN  F.  TOLLY. 
A.  D.  BULLIS. 

C.    H.    PlCKETT. 


SKA  I..  I 
SKA1..1 
SEAL.T 

SKA  I..] 


The  contract  does  not  require  a  seal,  and  is  not 
within  the  Statute  of  Frauds,  and  therefore  may  be 
verbal. — Murley  v.  Ennis,  supra;  Moritz  v.  Lavelle,  77 
Cat.  10;  16  M.  R.  236;  Meylette  v.  Brennan,  88  P.  75; 
Raymond  v.  Johnson,  /''  /'.  /.''.?;  Shea  v.  Nilima,  1SS 

'>'•>:  Doyle  v.  Burns,  <w  \.  \V.  W5;  Mack  v.  Mack, 
U  P.  707.  There  is  an  isolated  contrary  ruling  in 
Nevada. — Craw  v.  Wilson,  JO  P.  1076.  See  Nevada 
statutes,  1907,  p.  S70. 

The  association  is  practically  a  partnership. — 
Lawrence  v.  Robinson,  12  M.  R.  387;  4  Colo.  567;  Ab- 
bott v.  Smith,  S  Colo.  App.  265. 

If  the  outfitter  neglect  to  furnish  the  agreed  and 
necessary  supplies,  such  failure  may  be  treated  as  a 
condition  precedent,  and  the  prospector  is  at  liberty 
to  search  for  mineral  upon  his  own  account. — Mur- 
ley v.  Ennis.  sirpra;  Miller  v.  Butterfleld,  17  M.  R. 
.??.*;  21  P 

Where  a  prospector  made  locations  which  he 
concealed  from  his  outfitters,  and  afterwards  sold, 
he  was  compelled  to  account  for  the  outfitters'  share 
of  the  price. — Jennings  v.  Ricard.  15  M.  H.  t;.>',:  H> 
Colo.  S95.  But  he  was  not  held  in  this  instance  to 
account  to  outfitter  for  any  share  in  a  lode,  the  float 
of  which  he  discovered  while  prospecting,  but  did 
not  find  the  lode  till  afterward.  Of  course,  the  rule 
in  such  cases  must  vary  according  to  the  facts  and 
the  good  faith  in  the  premises. 

Where  an  association  for  prospecting  purposes 
is  abandoned,  the  several  late  partners  may  perfect 
locations  on  discoveries  made  on  their  several  ac- 
count.— Page  v.  Summers.  15  M.  R.  617:  70  Cal.  121. 
If  one  of  the  associates  quit  before  mineral  is  struck 
he  cannot  claim  an  interest  in  the  perfected  location. 


302  WORKING  CONTRACTS. 

— McLaughlin  v.  Thompson,  29  P.  816.  Delay  to  as- 
sert an  interest  in  the  discoveries  is  fatal. — Cisna  v. 
Mailory,  19  M.  R.  227;  84  F.  851. 

When  the  discoverer  points  out  the  place  for  loca- 
tion upon  a  verbal  arrangement  with  the  second  party 
to  take  up  the  claim  for  their  joint  benefit  and  the  sec- 
ond party  excludes  the  discoverer  from  the  location 
there  arises  a  resulting  trust  in  favor  of  the  discov- 
erer.— Stewart  v.  Douglass  (Gal.),  83  P.  699. 

Where  a  defendant  located  a  claim  in  his  own 
name  and  sold  it  to  a  company  for  stock,  being  under 
prospecting  contract  with  plaintiff,  plaintiff  is  entitled 
to  his  share  of  the  stock  upon  payment  of  his  share 
of  the  expenses.— Mack  v.  Mack  (Wash.),  81  P.  707. 

As  to  the  degree  of  proof  necessary  to  establish 
the  contract  compare  Rice  v.  Rigley.  20  M.  R.  553; 
61  P.  290,  and  Morrow  v.  Matthew,  7.9  P.  196.  The 
consideration  must  be  adequate.  Fifty  dollars  is  not 
enough  to  outfit  a  prospector  from  California  to 
Alaska.— Prince  v.  Lamb,  20  M.  R.  419;  60  P.  689. 

Permission  by  the  owner  to  prospect  his  ground 
must  be  exercised  within  a  reasonable  time. — Ca- 
hoon  v.  Bayaud,  1  N.  Y.  Sup.  81Jf.  But  in  Woodside 
v.  Ciceroni,  93  F.  1,  the  license  was  construed  as  per- 
petual. On  contract  to  prospect  and  test  land  for 
mineral  value,  for  what  amounts  to  sufficient  search. 
see  Wells  v.  Leek,  25  Atl.  101 ;  Jamestown  Co.  v.  Eg- 
bert, Id.  151;  Petroleum  Co.  v.  Coal  Co.  18  S.  W.  65. 

The  use  of  a  witchhazel  rod  to  test  for  ore  not 
allowed  as  proof;  the  party  agreeing  to  prospect  is 
bound  to  sink. — Berry  v.  Frisbie  (Ky.),  86  S.  W.  558. 


WORKING  CONTRACTS. 


A  contract  to  sink  a  shaft  does  not  necessarily 
imply  that  the  vein  will  be  followed. — Buckeye  Co. 
v.  Carlson,  66  P.  168.  The  contractor  is  not  bound  to 
timber  where  the  contract  is  silent  on  that  point. — 
No.  5  M.  Co.  v.  Bruce.  3  M.  /?./}//;  ',  Colo.  293. 

Nor  to  furnish  packer  and  tubing  on  contract  to 
sink  an  oil  well.  Collier  v.  Munger,  89  P.  1011. 


EXAMINATION  OF  TITLE.  303 

Contract  to  sink  to  bed  rock  is  complete  without 
disclosing  bed  rock  along  the  whole  bottom  of  the 
shaft.— Median  v.  Nelson,  137  F.  131. 

On  a  contract  to  sink  on  the  vein  where  the  vein 
disappears  the  contractor  is  not  bound  to  go  down 

through  the  country.- -  ir <>rth  v.  McLean,  11  S. 

\V.  ',.:. 

Measure  of  recovery  where  work  on  shaft  was 
ordered  stopped  before  completion. — Mooney  v.  York 
~>  Mo.  376. 

For  breach  of  covenant  by  Lessee  to  furnish 
plant,  drive  tunnel,  etc.,  see  Cleopatra  Co.  v.  Dickin- 

Where  the  mine  is  to  furnish  supplies  to  the  con- 
11  actor,  on  failure  he  may  quit  and  sue  for  the  work 
already  done. — Davis  v.  Brown  County  Co.  110  N.  W. 
1 1. 1:  Dignan  v.  Newlin,  82  8.  W.  758. 


EXAMINATION  OF  TITLE. 


The  written  title  to  «i  mining  claim  begins  with 
the  location  <••  itiflcate,  after  which  the  conveyances 
and  inrumbrances  should  appear  on  the  abstract  as 
in  other  classes  of  real  estate. 

Inspection  and  Survey. 

In  addition  to  the  abstract  of  title  a  survey  and 
local  inspection  are  indispensable  to  security,  espe- 
cially when  the  claim  is  not  patented. 

This  inspection  and  survey  should  result  in  as- 
certaining the  depth  of  discovery  shaft,  and  whether 
it  shows  a  well  defined  crevice;  whether  the  loca- 
tion notice  was  duly  posted  and  what  it  contains 
(p.  36);  whether  the  stakes  were  properly  set; 
whether  the  claim  (as  far  as  such  fact  can  be  fairly 
ascertained)  is  laid  so  as  to  cover  the  apex  or  gen- 
eral course  of  the  lode,  and  more  especially  what 
shafts,  tunnels,  prospect  holes,  stakes,  notices  and 
improvements,  indicate  the  presence  of  hostile 


304  EXAMINATION  OF  TITLE. 

claims;  and  if  such  intervening  or  overlapping  hos- 
tile claims  are  found,  their  seniority  or  juniority 
should  be  established. 

The  abstract  (at  least  until  patent)  may  show 
a  clear  chain  of  title,  and  may  be  based  on  a  record 
senior  to  other  records  on  the  same  vein,  and  still 
the  title  may  be  absolutely  worthless. — Patterson  v. 
Hitchcock,  5  M.  R.  542;  3  Colo.  533. 

An  adverse  senior  discovery  may  exist  within  a 
few  feet  of  the  discovery  of  the  claim  under  examina- 
tion. Every  hole  or  stake  in  proximity  to  the  claim 
should  be  examined,  its  history  traced,  and  the  pos- 
sibility of  danger  from  that  source  guarded  against. 

Whether  the  annual  labor  has  been  done  should 
also  be  ascertained. 

Such  inspection  having  been  made,  the  course 
of  examination  will  be  as  follows: 

1. THE    AB.STHA.    I 

The  abstract  should  be  certified  by  the  recorder 
or  by  some  reputable  abstract  firm,  to  contain  all 
deeds  and  instruments  filed  or  recorded,  in  the  of- 
fice of  the  recorder,  conveying,  encumbering  or  in 
any  manner  affecting  title  to  the  property  in  ques- 
tion. 

The  abstract,  however,  amounts  to  nothing  more 
than  a  guide  or  memorandum  to  the  attorney  in  his 
examination.  Each  deed  and  other  instrument 
should  be  inspected  at  length,  either  by  the  original, 
by  the  record  or  by  a  certified  copy. 

The  abstract  should  be  furnished  by  the  vendor 
at  his  own  charges. 

2. LOCATION    CERTIFICATE. 

The  material  points  to  be  observed  in  the  loca- 
tion certificate  are  that  it  contains  all  that  is  re- 
quired by  the  terms  of  A.  C.  Section  2324  and  by 
the  statute  of  the  particular  State:  ante  p.  60. 


(EXAMINATION  OF  TITLE. 
3. — OOIH  ltAN<  i  9, 

A   mine  is  conveyed  by  deed  or  encumbered  by 
mortgage  the  same  as  other  real  estate. 
The  description  should  contain 

1.  The  name  of  the  lode. 

2.  If  patented  the  number  of  the  survey  lot. 

3.  Mining  district,   County   and   State. 

Placer  claims  are  usually  described  by  their 
names,  or  if  patented  by  the  names  and  number  of 
the  survey  lot.  In  early  locations  they  were  usually 
numbered  with  reference  to  the  local  gulch. 

Deeds  by  Married  Women. 

The  separate  acknowledgment  by  a  married 
woman  is  not  required  in  Colorado,  but  where  re- 
quired in  any  State,  such  acknowledgment  is  gen- 
erally essential  to  pass  the  wife's  title,  and  is  not 
merely  a  mode  of  proof  of  the  delivery  of  the  deed 
which  is  the  usual  function  of  an  acknowledgment. 
See  p.  27). 

After  Acquired  Title. 

A  warranty  deed  conveys  to  the  grantee  any 
after  acquired  title  of  his  grantor,  and  even  a  quit- 
claim made  pending  application,  may  carry  the  pat- 
ented title  to  the  grantee. — Crane  v.  Salmon,  41  Cal. 
63;  Bradbury  v.  Davis,  S  M.  R.  S98;  5  Colo.  265. 

4. — PATENTS. 

Where  the  claim  is  patented  the  Patent  should 
appear  in  the  Abstract  although  failure  to  record 
the  patent  is  not  the  same  as  a  like  failure  in  case 
of  a  deed,  a  certified  copy  of  the  patent  being  always 
procurable  from  the  General  Land  Office.  The  pat- 
ent carries  the  title  back  to  the  entry  at  least. — 
Benson  Co.  v.  Alta  Co.  145  U.  8.  428. 

The  form  of  patent  is  quite  different  from  that 
of  a  patent  for  agricultural  lands,  and  contains 
specific  exceptions  as  to  easements,  etc.,  and  in  the 
form  used  before  1888  and  in  instances  since  that 
date  a  plat  of  the  survey;  and  excepts  the  surface 


306  EXAMINATION  OF  TITLE. 

ground  of  any  previous  entry  crossing  the  line  of 
the  lot  conveyed. 

Where  such  exclusions  occur  the  patentee  has 
no  claim  to  the  vein  in  such  excluded  area.  And  in 
instances  the  date  of  application  and  of  entry  or 
even  the  discovery  may  continue  to  be  material 
where  the  question  of  relation  arises.  See  p.  140. 

Where  a  patent  has  been  issued  there  is  no 
necessity  for  a  strict  examination  of  the  location 
certificate  or  of  the  various  acts  of  location.  It  cures 
all  defects  incident  to  the  location  and  in  most  in- 
stances any  formal  break  in  the  chain  of  title  prior 
to  the  application.  And  especially  it  cuts  out  prior 
hostile  titles  which  have  failed  to  adverse  or  to  suc- 
cessfully maintain  their  adverse. 

But  it  does  not  divest  the  title  of  a  co-tenant 
dropped  in  the  patent  application  (see  p.  127),  or  at 
least  it  may  be  possible  for  a  party  having  a  claim 
to  an  interest  in  the  possessory  title  to  prove  an 
equity  such  as  would  make  the  patentee,  trustee  of 
the  title  for  his  use.  Nor  does  it  dispense  with  the 
importance  of  a  surface  examination  to  see  that  the 
corners  agree  with  the  plat  and  that  the  survey  lot 
substantially  encloses  the  vein. 

5. — PLAT    OF   PATH. VI. 

In  the  older  form  of  patents  was  inserted  a 
diagram  in  which  the  ground  conveyed  was  colored. 
Where  the  patent  contains  no  such  plat  a  certified 
copy  should  be  obtained  from  the  Surveyor  General's 
office,  and  a  comparison  of  the  plat  made  with  the 
metes  and  bounds  contained  in  the  description  and 
the  exclusions,  if  any,  recited  in  the  patent. 

6. — LIENS. 

A  patent  does  not  divest  liens  accrued  against 
the  possessory  title.  They  are  especially  saved  by 
the  terms  of  R.  S.  §  2332. 

A  judgment  not  becoming  a  lien  until  a  tran 
script  of  the  same  has  been  recorded  such  lien  will 
show  on  the  Abstract.  But  there  may  be  a  lien 


EXAMINATION  OF  TITLE. 

which  would  not  so  show,"  by  judgment  in  a  Federal 
Court  in  any  County  where  Federal  Courts  are  held. 
There  is  also  a  class  of  possible  liens  which 
have  to  be  the  subject  of  parol  inquiry,  siu-h  as  me- 
chanics' liens,  liens  in  favor  of  the  state  on  an  aud- 
ited account  or  for  fine  or  costs  or  suretyship  in 
criminal  cases.— R.  S.  Colo.  Sees.  2009,  2010. 

1. PARTIKS    IX    POSSESSION. 

If  parties  are  in  actual  possession,  claiming  ad 
versely  to  the  grantor,  or  claiming  under  him  as 
lessees,  their  possession  is  an  assertion  of  their 
claim,  whatever  it  may  be,  of  which  the  purchaser 
must  take  notice  at  his  peril. — Coffee  v.  Emigli.  i:, 
Colo.  184. 

8. CONCLUSION. —  DVTY     OF    MM    \-ll. 

If  from  the  abstract,  or  from  any  of  the  con  in 
cates,  or  from  inspection  of  any  deed,  instrument 
or  record  in  the  chain  of  title;  or  as  the  result  of 
his  client's  inspection  and  survey  of  the  premises,  or 
from  any  other  source,  the  attorney  is  inform. -;l  <>i 
any  adverse  title,  or  of  any  outstanding  trust  or  ad- 
verse interests,  or  of  any  missing  conveyance  in  the 
chain  of  title,  or  of  any  serious  defect  in  the  body 
or  acknowledgment  of  any  instrument  of  such  a 
nature  as  to  invalidate  the  title — the  true  condition 
of  such  title  should  then,  with  due  secrecy,  be  ex- 
pressed to  the  client.  And  when  the  attorney  has  sat- 
isfied his  own  mind  upon  all  such  questions  of  law 
as  may  have  arisen  during  the  course  of  his  exam- 
ination, the  client  has  a  right  to  be  advised  of 
all  points  which  remain  in  doubt,  and  of  any  con- 
tingencies which  may  threaten  the  quiet  enjoyment, 
or  would  obstruct  a  sale  of  the  premises;  and  of 
all  steps  which  if  presently  taken  may  avoid  such 
conditions  and  perfect  the  title,  so  that  the  true 
value  of  the  title  in  law  shall  be  represented  to  the 
client,  that  is,  the  intending  purchaser.  For  in  ali 
cases  of  examination  of  title,  the  attorney  should  be 
selected,  or  at  least  assented  to,  by  the  purchaser, 


308  ALIENS. 

if  it  be  a  sale;  by  the  lender  of  money,  if  it  be  a 
mortgage;  because  from  the  necessity  of  the  case,  he 
acts  in  the  interest  of  the  purchaser  and  of  the  lender, 
and  not  in  that  of  the  grantor  or  of  the  mortgagor; 
the  charge  for  his  examination  should  be  made 
against  the  same  side;  the  charge  for  the  convey- 
ance, on  the  other  hand,  is  by  custom  made  against 
the  vendor. 


ALIENS. 

Ownership  of  Patented  Title. 

The  right  of  aliens,  resident  or  non-resident,  to 
acquire  title  to  patented  property,  depends  upon  the 
local  legislation  which  in  general  fully  provides  for 
such  ownership.  The  Colorado  Statute  (R.  S.  Chap. 
3,  and  art.  2,  sec.  27,  of  the  Constitution)  allows 
ownership  by  either  resident  or  non-resident  aliens. 

A  patent  to  the  use  of  an  alien  may  not  be  at- 
tacked  except  by  direct  governmental   inquisition. 
Justice  Co.  v.  Lee,  21  Colo.  260. 

Ownership  of  Possessory  Title. 

The  Mining  Acts  throw  open  the  public  domain 
to  citizens  only  and  to  those  who  have  declared 
their  intentions  to  become  citizens. — A.  C.  §  8MP. 

It  would  seem  from  their  language  that  an  alien 
could  not  locate  a  claim  and  if  he  could  not  locate, 
his  holding  by  deed  and  perhaps  by  devise  or 
descent  might  be  questioned. 

But  the  matter  in  its  practical  importance  is 
controlled  by  the  rule  laid  down  in  opinions  of  the 
Federal  Supreme  Court,  Manuel  v.  Wulff,  M.'  U.  ft 
505;  McKinley  Co.  v.  Alaska  Co.  183  U.  S.  563,  that 
the  question  of  ownership  by  an  alien  is  a  matter 
between  himself  and  the  government  and  that  as 
long  as  the  Government  does  not  make  inquisition 
to  deprive  him  of  his  title,  or  become  a  party  to 
proceedings  to  perfect  the  title,  his  title  even  when 


ALIENS.  309 

he  claims  under  his  own  location  is  good  against  all 
tbe  world. 

Adverse  Claim  Cases. 

As  the  Government  rarely  initiates  such  pro- 
ceedings the  alien  in  contest  with  a  citizen  has 
therefore  the  same  standing  as  the  citizen  (Tornan- 
ses  v.  Melsing,m109  F.  110)  save  only  on  application 
for  patent  and  "in  suits  supporting  adverse  claims,  in 
which  proceedings  the  Government  is  an  interested 
party  and  the  citizenship  of  the  parties  becomes 
material. 

If  the  parties  to  such  suit  are  citizens  the  fact 
that  the  locator  was  an  alien  or  that  one  of  several 
locators  was  an  alien  or  that  intermediate  holders 
were  aliens  becomes  wholly  immaterial. — North  N. 
Co.  v.  Orient  Co.  9  M.  It.  530;  1  F.  rrovidence 

Co.  v.  Burkr,  j?  p.  64 1»  Gorman  Co.  v.  Alexander, 
51  N.  W.  S46;  Billings  v.  Aspen  Co.  52  F.  250;  Stew- 
art v.  Gold  Co.  82  P.  475. 

The  Citizenship  of  the  Original  Locator  is  ma- 
terial only  where  he  continues  to  be  the  claimant  to 
the  time  of  the  institution  of  the  adverse  suit. 

Declaration  of  Intention. 

One  who  has  declared  his  intention  to  become 
a  citizen  of  the  United  States  may  locate,  enter  and 
patent  a  claim  the  same  as  a  citizen.  No  fixed  period 
of  previous  residence  is  required  before  making  such 
declaration. 

The  Act  of  Naturalization  Is  Retroactive,  so  that 
if  an  alien  has  located  a  claim  and  afterwards  be- 
came or  declared  his  intention  to  become  naturalized, 
his  location  is  good  from  its  original  date. — Osier- 
man  v.  Baldwin,  6  Wall  / . .' .  .".>  /..  7).  Hi',;  Shea  v. 
yilima,  183  F.  209. 

In  the  last  cited  case  a  prospecting  contract  be- 
tween two  parties,  both  aliens,  was  enforced. 

In  the  Manuel  case  a  citizen  had  located  and 
sold  to  an  alien.  The  alien  had  applied  for  patent 


310  ALIENS. 

and  was  adversed.  Pending  trial  he  became  nat- 
uralized, he  being  a  minor  emigrant  entitled  to  take 
out  papers  without  previous  declaration  of  inten- 
tion, and  the  Court  held  that  the  effect  of  naturaliza- 
tion was  retroactive,  made  his  claim  valid  and  de- 
feated the  adverse. 

Children  of  Aliens. 

There  is  a  common  impression  that  the  natural- 
ization of  the  father  operates  to  make  citizens  of  all 
his  children  who  came  to  the  United  States  under 
twenty-one  years  of  age;  but  this  is  the  case  only  as 
to  such  children  who  were  under  that  age  at  the 
date  of  the  father's  naturalization  papers. — R.  N.  § 
2172;  34  St.  L.  1229. 

An  Alien  May  Take  Title  by  Descent  and  hold 
the  claim  against  all  the  world  except  the  United 
States.— Billings  v.  Aspen  Co.  51  F.  33*.  •>  >  /  ISO; 
Lohmann  v.  Helmer,  10Jt  F.  178. 

Pleading  and  Proof  of  Citizenship. 

'Except  in  adverse  claim  cases  it  need  be  neither 
alleged  or  proved. — Harris  v.  Kellogg.  ','.'  r.  7  ox.- 
Buckley  v.  Fox,  67  P.  659;  Oruwell  v.  Rocco.  ?  ',  r. 
1028.  It  may  be  proved  when  essential  though  not 
averred. — Altoona  Co.  v.  Integral  Co.  4$  P-  Wrf • 
Where  no  issue  is  made  on  it,  it  cannot  be  contro- 
verted.— Jackson  v.  Dines,  18  Colo.  .'"/ ;  Sherlock  v. 
Leighton,  63  P.  934. 

Indirect  proof  by  circumstances  has  been  al- 
lowed.— Strickley  v.  Hill,  62  P.  893,  and  in  Jantzen 
v.  Arizona  Co.  20  P.  93,  the  broad  view  was  ex- 
pressed, and  as  we  have  always  believed  correctly 
expressed,  that  (in  judicial  as  distinguished  from 
departmental  proceedings)  a  presumption  exists  in 
favor  of  the  citizenship  of  a  resident  locator. 

The  point  of  alienage  must  be  raised  on  the  trial 
below.— O'Reilly  v.  Campbell.  116  U.  8.  .',>». 

Where  a  party  is  native  born  his  own  statement 
proves  his  citizenship.  Where  naturalization  or  dec- 
laration of  intention  is  in  issue  the  proper  proof 


MEXICAN  GRANT.  311 

is  the  production  of  a  certified  copy  of  the  record, 
but  there  are  instances  when*  this  strictness  is  not 
insisted  on. — Wood  v.  Aspen  Co.  36  F.  ^.7;  Provi- 

0  Co.  v.  Burke,  57  P.  <>}/. 

In  the  Land  Office  upon  application  for  patent 
and  upon  adverse  claim  the  proof  is  by  affidavit  and 
like  proof  is  held  good  in  the  suit  supporting  the 
adverse.— Hammer  v.  Garfield  Co.  16  M.  A'.  1  !~>:  l.in 
U.  8.  201:  <n!*- illy  v.  Campbell  116  U.  8.  .}>"• 

Citizenship  of  the  stockholders  of  an  American 
corporation  need  not  be  proved  and  issue  cannot  be 
taken  on  this  point. — Doe  r  Waterloo  Co.  10  F.  'f~><;. 

The  Federal  Alien  Act  of  March  3,  1887,  is  in 
force  in  the  Territories  only.  The  Act  (Sup.  556) 
forbids  aliens  who  have  not  declared  their  inten- 
tions, to  hold  any.  real  estate  patented  or  possessory, 
except  by  inheritance  or  as  creditors  buying  to  pro- 
tect debts.  It  applied  also  to  corporations  where 
over  20  per  cent,  of  their  stock  was  held  by  aliens; 
but  this  restriction  was  removed  by  the  Act  of 
March  2,  1897,  29  St.  L.  618,  so  that  now  a  corpo- 
ration not  alien  may  purchase  from  the  Govern- 
ment irrespective  of  the  citizenship  of  its  stock- 
holders.— 28  L.  D.  118.  By  the  same  amendment  it 
allows  aliens  to  acquire  and  hold  by  purchase,  pos- 
sessory as  well  as  patented  mining  claims.  Its  lan- 
guage is  so  vague  that  it  cannot  be  told  without  ju- 
dicial construction  whether  it  would  allow  of  the 
original  location  of  a  mining  claim  by  an  alien.  Ex- 
cept as  affected  by  the  Alien  Act  or  by  local  statute, 
Chinese  or  other  aliens  can  work  under  lease  from 
a  citizen.— Ah  Kle  v.  McLea,,.  .it  /'.  200. 


MEXICAN  GRANT. 

The  three  cessions  of  Mexican  territory  to  the 
I'n i ted  States  were  by  the  treaty  of  Guadaloupe 
Hidalgo,  Feb.  2,  1848,  the  Gadsden  purchase  in  185o 
and  the  grant  by  the  State  of  Texas  in  1850,  of  all 


312  .  MEXICAN  GRANT. 

its  claims  to  territory  outside  of  its  present  boun- 
daries. It  had  been  the  policy  of  the  Spanish  and 
Mexican  governments  to  allow  the  governors  of  the 
outlying  provinces  to  pass  title  to  large  tracts  for 
colonization  purposes  but  limited  to  eleven  square 
leagues.  Such  private  cessions  of  land  are  recog- 
nized by  all  the  treaties  as  well  as  by  the  modern 
law  of  conquest,  and  they  have  been  variously  con- 
firmed by  special  Acts,  by  patents,  or  by  the  adjudi- 
cation of  the  Court  of  Land  Claims.  Many  of  the 
so-called  grants  were  of  an  inchoate  character — 
what  we  would  call  licenses  or  equities  not  ripened 
into  grants  proper.  But  whatever  their  status  the 
U.  S.  is  understood  to  be  bound  as  fully  as  was  the 
original  government. 

In  Moore  v.  Smaiv,  U  M.  R.  418;  17  Cal.  199, 
where  the  subject  of  mineral  rights  in  grants  was 
fully  discussed,  it  was  held  that  no  interest  in  min- 
erals passed  by  the  grant  of  the  Mexican  govern- 
ment without  express  words  designating  them  and 
that  at  the  date  of  the  cession  of  California  to  the 
United  States  they  were  the  property  of  the  Mexican 
government  and  passed  by  the  cession  of  the  United 
States;  but  that  a  patent  from  the  United  States,  in 
confirmation  of  such  grant,  making  no  reservation 
of  the  minerals,  invested  the  patentee  with  the  own- 
ership of  the  minerals. 

In  Fremont  v.  U.  8.  17  How.  565,  it  was  held 
that  the  discovery  of  gold  or  silver  did  not,  under 
the  mining  laws  of  Mexico,  destroy  the  title  of  the  in- 
dividual holding  the  grant  to  the  surface,  without 
passing  upon  the  rights  of  the  government  or  of  the 
discoverer,  in  such  minerals. 

The  Moore  case  followed  without  qualification  in 
Fremont  v.  Seals,  11  M.  R.  632:  18  Cal.  433,  and  Ah 
He  v.  Crippen,  10  M.  R.  367;  19  Cal.  492,  remained 
for  many  years  unquestioned,  but  in  U.  8.  v.  San 
Pedro  Co.  17  P.  337,  the  Supreme  Court  of  New 
Mexico  held  that  a  confirmation  of  the  grant  by 
patent  or  statute  did  not  pass  the  minerals.  The 
facts  in  this  case  for  the  mineral  claimant  were  very 
strong,  as  the  mines  on  that  grant  had  been,  prior 


MINING  CORPORATIONS,  DOMESTIC.  313 

to  the  cession,  of  known  value  and  denounceable,  if 
not  actually  denounced  under  Mexican  law. 

A  Mexican  grant  seems  to  be  inadmissible  as 
proof  of  title  till  confirmed  by  Act  of  Congress. — 
Astiazaran  v.  Santa  Rita  Co.  20  P.  ISO;  148  U.  8.  80. 
But  confirmation  may  be  complete  without  patent. — 
shair  r.  Kriiogg,  170  U.  £.  S12.  And  the  action  of 
Congress  is  not  subject  to  judicial  review. — Catron  v. 
LaughUn.  7>  P.  26. 

A  mining  location  may  be  made  on  an  uncon- 
firmed Mexican  grant.  Such  land  is  not  reserved 
against  entry.— LockJiart  v.  Wills,  54  P.  336;  Aff'd  181 
U.  8.  516. 

In  Gildersleeve  v.  New  Mexico  Co.  a  confirmed 
Mexican  grant  was  upheld  on  the  ground  of  laches 
of  the  complainant. — 161  U.  8.  573. 


MINING  CORPORATIONS,  DOMESTIC. 

A  Corporation  is  an  "association  of  persons" 
within  the  meaning  of  the  U.  S.  Mining  Acts. — U.  8. 
v.  Trinidad  Co.  137  U.  8.  160. 

*Any  three  or  more  persons  are  authorized  to 
file  their  certificate  of  incorporation  under  the  Colo- 
rado Incorporation  Act. — R.  8.  §§  845-999,  for  purposes 
of  mining  or  construction  of  ditches  or  flumes;  to 
run  tunnels;  or  in  fact  "for  any  lawful  purpose," 
but  there  are  special  provisions  in  the  corporation 
chapter  which  refer  only  to  mining,  ore  reduction, 
and  tunneling  companies — and  other  special  provi- 
sions concerning  ditch,  flume  and  pipe  line  compa- 
nies.—§§  988,  998. 

•These  details  varv  in  the  several  States  and  Terri- 
tories, but  each  allows  of  incorporation  upon  practically  the 
same  terms  and  upon  compliance  with  substantially  the 
same  forms  as  in  Colorado.  To  state  each  instance  where 
they  vary  would  be  beyond  the  plan  and  intended  size  of 
this  work.  Nor  is  it  advisable  even  where  the  most  com- 
plete local  forms  and  directions  are  given  in  any  book  to 
attempt  to  write  any  such  document  as  a  corporate  (barter 
without  professional  counsel. 


314  MINING  CORPORATIONS,  DOMESTIC. 

The  Number  of  Directors  of  a  Mining  Company 
shall  not  be  less  than  three  nor  more  than  nine.  R. 
8.  §  911.  Section  865  which  makes  the  limit  thirteen 
is  generally  supposed  to  not  apply  to  mining  corpora- 
tions. 

The  Par  Value  of  Shares  cannot  be  less  than  one 
dollar  nor  exceed  one  hundred  dollars,  and  the  shares 
may  be  issued  payable  in  instalments. — §850. 

The  Directors  have  power  to  sell  the  Stock  of 
the  Company  at  less  than  par. — Mosher  v.  Sinnott, 
19  P.  142. 

Rights  of  Stockholders. 

Any  stockholder  has  a  right  to  inspect  the  books 
of  the  corporation. — §  869.  And  the  holders  of  fif- 
teen per  cent,  may  demand  a  written  statement. — 8 
877.  But  there  is  no  Statute  allowing  stockholders 
the  right  to  examine  the  mine. 

The  Term  of  Existence  cannot  exceed  twenty 
years. — §  N'/7.  But  may  be  revived. — §  891. 

Stock  Paid  in  Lands. 

Any  such  company  may  Issue  stock  in  payment 
for  mines,  such  stock  to  be  treated  as  paid-up  stock. 
— §  851. 

Where  stock  is  issued  upon  excessive  overvalua- 
tion the  holder  may  be  held  personally  liable. — Kelly 
v.  Fourth  Co.  53  P.  959;  compare  DuPont  v.  Tilden, 
W  F.  87. 

No  personal  liability  is  imposed  upon  stockhold- 
ers for  debts,  except  to  the  extent  of  unpaid  stock 
held  by  them. — §  873.  Directors  and  officers  be- 
come liable  for  failure  to  make  and  file  an  annual 
report;  or  for  declaring  fraudulent  dividends. — §  911, 
872. 

Sale  to  corporation  of  claims  located  without 
discoveries  held  to  be  without  consideration  and 
the  stockholders  personally  liable. — Buck  v.  Jones, 
10  P.  951;  22  M.  R.  467. 


MINING  CORPORATIONS,  DOMESTIC.  315 

Annual  Meetings  of  Stockholders  are  provided  for 
by  Statute,  the  By-Laws  fixing  the  time  and  place. 
They  cannot  be  lawfully  held  out  of  the  State. — Jones 
v.  Pearl  M.  Co.  20  Colo.  417. 

The  Colorado  Act  (R.  8.  §  865)  requires  no- 
tice to  be  published  not  less  than  ten  days  previous 
to  the  meeting,  in  a  newspaper  published  where 
the  principal  office  is  kept,  and  thirty  days'  notice 
to  each  stockholder. 

Mortgage. 

In  Colorado  a  mining  company  is  forbidden  to 
mortgage  its  property  except  by  a  majority  vote  of 
its  Stockholders.—!  865. 

Other  States  have  similar  limitations.  Either 
previous  assent  or  subsequent  ratification  answers 
the  demands  of  such  Statute. — Lacy  v.  Qunn,  78  P.  SO. 

Corporate  Deed. 

The  seal  of  the  Company  is  prima  facie  evidence 
that  it  was  affixed  by  corporate  authority. — Union 
Co.  v.  Bank,  2  Colo.  226.  To  render  a  conveyance 
of  real  property  unimpeachable  it  should  be  author- 
ized by  the  Board  of  Directors,  preceded  by  action 
of  the  stockholders  at  a  meeting  called  for  that  pur- 
pose. But  the  deed  may  be  valid  without  such 
minutes. — Rubie  Co.  v.  Princess  Co.  71  P.  1121. 

Seal. 

A  corporation  may  be  bound  by  a  scroll  seal. — 
G.  V.  B.  Co.  v.  Bank.  And  may  adopt  new 

seal  when  its  president  withholds  the  old  one. — 80- 
corro  Co.  v.  Preston,  40  N.  Y.  8.  1040. 

ARTICLES    OF   INCORPORATION MINING    COMPANY. 

\Vin:i:i:.\s,  Franklin  R.  Carpenter,  Elbert  F.  Fitzgerald 
and  Frank  W.  Howbcrt,  nil  of  the  City  and  County  of  Den- 
State  of  Colorado,  have  associated  themselves  together 
for  purposes  of  incorporation  under  the  General  Incorpora- 
tion Acts  of  the  State  of  Colorado,  they  do  therefore  make, 
-OL'ii  and  acknowledge  these  duplicate  certificates  in  writirig, 
which  when  filed,  shall  constitute  the  Articles  of  Incorpora- 
tion of  The  YcUow  Bug  Mining  Company. 


316  MINING  CORPORATIONS,  DOMESTIC. 

AETICLB  1.  The  name  of  said  company  shall  be 
The  Yellow  Bug  Mining  Company. 

ARTICLE  2.  The  objects  for  which  said  Company  is 
created  are  to  acquire,  hold,  work  and  operate  mines  and 
lodes  bearing  gold,  silver  and  other  associated  minerals  in 
the  County  of  San  Miguel  in  said  State  of  Colorado  ;  and  to 
acquire,  own  and  use  water,  water  rights  and  mills  incident 
to  the  extraction,  treatment  and  reduction  of  the  ores  of 
said  metals  and,  from  time  to  time,  to  sell  and  convey  such 
mines,  mills,  water  rights  and  ores,  and  to  do  all  things  in- 
cident to  the  general  business  of  mining  and  to  market  and 
treat  the  product  of  the  mines. 

ARTICLE  3.  The  term  of  existence  of  said  company 
shall  be  twenty  years. 

ARTICLE  4.  The  capital  stock  of  said  company  shall 
be  one  hundred  thousand  dollars  divided  into  one  hundred 
thousand  shares  of  one  dollar  each. 

ARTICLE  5.  The  number  of  directors  of  said  company 
shall  be  three,  and  the  names  of  those  who  shall  manage  the 
affairs  of  the- company  for  the  first  year  of  its  existence  ;m 
Franklin  R.  Carpenter,  Elbert  F.  Fitzgerald  and  Frank  ir. 
Ilowbert. 

ARTICLE  6.  The  principal  office  of  said  company 
shall  be  kept  at  Placerville  in  said  County  and  the  prin- 
cipal business  of  said  company  shall  be  carried  on  in  said 
County  of  San  Miguel. 

ARTICLE  7.  The  stock  of  said  company  shall  be  non- 
assessable. 

ARTICLE  8.  The  board  of  directors  shall  have  power 
to  make  such  prudential  by-laws  as  they  may  deem  proper 
for  the  management  of  the  affairs  of  the  company,  not  in- 
consistent with  the  laws  of  this  State,  for  the  purpose  of 
carrying  on  all  kinds  of  business  within  the  objects  and 
purposes  of  such  company. 

In  witness  whereof,  the  said  Incorporators  have  here- 
unto set  their  hands  and  seals  this  first  day  of  Januarii. 
A.  D.  1908. 

FRANKLIN    R.    CARPENTER.     ("SEAL.! 

ELBERT   F.   FITZGERALD. 

FRANK   W.   HOWBERT.  [SEAL.] 

STATE  OF  COLORADO,  City  and  County  of  Denver:  ss. 

I,  Arthur  R.  Morrison,  a  notary  public  in  and  for  said 
County,  do  hereby  certify  that  Franklin  R.  Carpenter. 
Elbert  F.  Fitzgerald  and  Frank  W.  Howbert,  who  are  per- 
sonally known  to  me  to  be  the  same  persons  described  in. 
and  who  executed  the  within  duplicate  Articles  of  Incor- 
poration, appeared  before  me  this  day  and  personally 
acknowledged  that  they  signed,  sealed  and  delivered  the 
same  as  their  free  and  voluntary  act  and  deed. 

Witness  my  hand  and.  notarial  seal  this  first  day  of 
January,  A.  D.  1908.  Arthur  R.  Morrison, 

[SEAL.]  Notary   Public. 

Where  it  is  desired  to  transact  part  of  the  busi- 
ness out  of  the  State  the  certificate  must  so  state: 


MIXING  CORPORATIONS,  DOMESTIC.  317 

ARTICLE  9.     A  part  of  the  business  of  snid  Company 

shall  be  carried  on  in  AYA/».//.  County  of  Luzerne,  Common- 

•ntti/h-'inia.    and    the    principal    office    of    said 

Company  out  of  the  State  shall  be  at  said  Eckley,  at  which 

office  meetings  of  directors  mny  be  held. 

The  first  seven  articles  in  the  above  form  con- 
tain all  the  statutory  requirements.  Article  8  in  re- 
gard to  the  by-laws,  is  necessary  if  it  is  intended 
that  the  directors  instead  of  the  stockholders,  shall 
make  the  by-laws. — /'.  N.  §  858. 

One  of  the  said  duplicates  is  to  be  filed  with  the 
Recorder  of  the  proper  county,  and  one  with  the 
Secretary  of  State,  and  if  the  business  is  to  be  car- 
ried on  in  more  than  one  county,  the  word  dupli- 
cate should  not  be  used,  as  there  must  be  an  orig- 
inal for  each  county  as  well  as  for  the  Secretary  of 
State. 

Assessable  or  Non-Assessable. 

The  'statute  provides  for  assessments  upon 
shares,  where,  by  the  charter  the  stock  is  made  as- 
sessable, and  requires  that  whether  the  stock  shall 
be  assessable  or  non-assessable  shall  be  stated  in 
the  articles;  and  each  certificate  of  stock  "shall 
have  plainly  printed  on  the  face  thereof  the  word 
'assessable'  or  'non-assessable*  as  the  case  may  be." 

Where,  after  organization  complete,  a  company 
desires  to  extend  its  business  into  other  counties,  it 
may  do  so  without  amending  charter,  by  filing  cer- 
tified copy  from  the  Secretary  of  State's  office  with 
the  Recorder  of  the  new  county. 

On  filing  the  articles  a  copy  certified  by  the  Sec- 
retary of  State  should  be  procured  and  preserved 
as  the  legal  voucher  for  corporate  existence:  at  the 
same  time  the  Secretary  of  State  issues  his  "Certifi- 
cate of  Authority"  under  the  Act  of  1901,  and,  there- 
upon should  be  called  the  organization  meeting,  to 
be  attended  by  a  majority  of  the  original  Board 
of  Directors  (by  custom  the  same  persons  as  the  in- 
corporators,  though  not  necessarily  so).  This  or- 
ganization meeting,  so-called,  is  really  the  first  reg- 
ular meeting  of  the  Board  of  Directors,  and  at  such 


318  MINING  CORPORATIONS,  DOMESTIC. 

meeting    the    articles    filed    should    be    formally    ac- 
cepted. 

ORGANIZATION     MEETING. 

Record  of  first  meeting  of  the  Board  of  Directors 
of  The  bellow  Bug  Mining  Company,  at  PlacerviUe,  Colo- 
rado, January  T,  1908. 

At  a  meeting  of  the  persons  named  in  the  articles  of 
said  Company,  there  being  present  Franklin  R.  Carpenter, 
Elbcrt  F.  Fitzgerald  ami  I 'rank  IF.  Howbert. 

On  motion  Franklin  R.  Carpenter  was  elected  chair- 
man and  Frank  W.  Howbert,  secretary  pro  tern. 

On  motion  the  Articles  of  Incorporation  as  filed  in 
the  office  of  the  Secretary  of  State  and  in  the  office  of  the 
County  Clerk  of  San  Miguel  County,  were  accepted  as  the 
articles  of  incorporation,  or  charter  of  said  company. 

On  ballot  taken  Franklin  R.  Carpenter  was  elected 
president  of  the"  company,  Elbert  F.  Fitzgerald  was  elected 
vice-president,  Frank  W.  Hotcbert  was  elected  treasurer. 
\Un,-t  /.'.  iftH-ii,  r  was  elected  secretary,  and  Elias  Stephan 
was  elected  superintendent. 

On  motion  the  following  by-laws  were  adopted : 

*  BY-LAWS. 

I— OFFICERS. 

The  officers  of  this  company  shall  consist  of  a 
President,  Vice-President,  Secretary,  Treasurer,  and  Super- 
intendent, who  shall  be  chosen  by  the  Directors  at  their 
first  meeting  following  the  annual  meeting  of  the  stock- 
holders in  each  year.  They  shall  be  elected  from  the  Board 
of  Directors,  except  the  Secretary  and  Superintendent,  who 
may  or  may  not  be  Directors.  Said '"officers  shall  hold  their 
respective  offices  until  their  successors  are  appointed  nnd 
enter  upon  the  duties  of  their  offices.  Vacancies  among  the 
Directors  may  be  filled  at  any  meeting  of  the  Board  of 
Directors,  by  ballot. 

II DUTIES    OF    PRESIDENT. 

It  shall  be  the  duty  of  the  President  to  preside  at  all 
meetings  of  the  Directors,  and  to  sign  all  bonds,  deeds, 
M^'I -cements  or  other  instruments  in  writing,  made  or  entered 
into  by  or  on  behalf  of  the  corporation;  to  sign  all  certifi- 
cates of  stock,  and  all  orders  for  money  on  the  Treasurer, 
and  in  general,  perform  all  acts  incident  to  his  office. 

Ill — DUTY    OF    VICE-PRESIDENT. 

It  shall  be  the  duty  of  the  Vice-President  to  perform 
all  such  functions  as  belong  to  the  office  of  President  in 
the  absence  of  the  President. 

*The  above  by-laws  will  be  found,  in  general,  suffi- 
cient ;  but  each  by-law  should  be  reviewed  and  such  changes 
made  as  may  be  needed  to  cover  special  plans  of  the 
incorporators. 


MINING  CORPORATIONS,  DOMESTIC.  319 


iv — DUTIES  OP  'SECRETARY. 

The  Secretary  shall  give  due  notice  of  all  meetings 
of  stockholders,  and  of  the  Board  of  Directors;  shall  pre- 
pare and  keep  proper  books  of  record  and  of  account  for  the 
business  of  the  company,  and  such  other  books  as  may  be 
required  by  law  <»r  the  directors  may  prescribe.  He  shall 
countersign  and  register  all  certificates  of  stock,  and  other 
locuments  requiring  the  signature  of  the  President,  attach 
n j:  the  corporate  SI-M!  of  the  company  to  all  instruments 
•squiring  seal,  and  perform  all  such  other  duties  as  are 
ncident  to  his  otlice.  A  suitable  compensation,  to  l.e  deter 
nined  by  the  I  »iivctors.  shall  he  allowed  the  Secretary  for 
his  services.  He  shall  be  the  custodian  of  the  corporate 
seal. 

V — DCTIES    OP    TREASURER. 

The  Treasurer  shall  ho  the  custodian  of  the  funds 
until  the  same  be  disposed  of  by  order  of  the  Board  of 
Director*  He  shall  give  bond  satisfactory  to  the  Board 
of  Directors,  for  the  faithful  performance  of  his  duties. 
oney  shall  be  paid  out  by  the  Treasurer  except  on  tin- 
order  of  the  President  or  Superintendent,  counters ILM id  by 
the  Secretary. 

\l  —DUTIES   OF   SUPERINTEND*: 

The   Superintendent  shall   have  control   of  the   work 

ing  and  developing  of  the  company's  mining  property  :  shall 

report   to   the   Board    of    Directors,   for    their    approval,    all 

contemplated  work,  and  after  such  approval,  shall  hnvo  full 

power   to   contract    said    work.      All    expenses   Incurred    by   the 

in     the    working    and    management    of    the 

company's    property    shall    be    borne    by    the    company.      A 

le    ci.ui|M 'illation,    to   be  determined    by   the  .Board    of 

directors,  shall   be  alb. wed  him  for  his  services. 

VII — BOARD    OF    DIRECTORS. 

The  Board  of  Directors  shall   consist  of  three  mem 
always    including    the    President.    VIce-President    and 
Treasurer,      it    shall    be   the  duty  of  the  Board   to  exercise 
ral    supervision    over    the    affairs    of   the    company ;    to 
ve  and  pass  upon  the  reports  of  the  Secretary,  Treas- 
urer   and    Superintendent,    to    audit    all    bills   and    accounts 
air.-iinst    the   company,   and    to  direct   the   Secretary    in    cor- 
respondence. 

VIII — ANNUAL     REPORTS. 

The    Board    of   Directors   shall    cause    its    officers  to 

make    a    full    exhibit    of   their    several    departments    and  to 

prepare    reports    for    submission    to    the    annual    meeting  of 
stockholders. 

IX DIRECTORS'    MEETINGS. 

The  Board  of  Directors  shall  meet  at  such  times  as 
they  shall  from  time  to  time  determine,  and  a  meeting  of 
tho  Board  may  at  any  time  be  called  by  the  President  or 
any  two  members  of  the  Board  by  causing  personal  notice 


320  MINING  CORPORATIONS,  DOMESTIC. 

to  be  served  upon  the  Directors  tit  least  one  day  before 
the  date  of  such  proposed  meeting.  Two  of  the  Directors 
shall  constitute  a  quorum  for  the  transaction  of  business. 
All  Directors  and  officers  must  be  stockholders. 

X STOCKHOLDERS'    MEETING. 

The  first  annual  meeting  of  the  company  shall  be 
held  at  the  office  of  the  company  at  Placerville,  at  H> 
o'clock  A.  M.,  on  the  second  Tuesday  In  January,  A.  D.  1900, 
and  on  the  same  Tuesday  of  each  succeeding  year.  Tf 
omitted,  the  Directors  shall  hold  over  until  their  successors 
are  appointed.  Special  meetings  may  be  called  by  the 
Board  of  Directors,  or  by  one-tenth  in  amount  of  all  the 
stock  held.  Such  published  notice  and  personal  notice  by 
mail  as  may  be  required  by  law,  shall  be  given  of  • 
meeting  (except  adjourned  meetings)  and  the  object  of  the 
meeting  shall  be  stated  in  the  notice.  Stockholders  may 
be  represented  by  proxies,  which  must  be  exhibited  for 
inspection  to  the  meeting. — See  §  865. 

XI CERTIFICATE     OP     SHARES. 

The  subscribers  to  the  capital  stock  of  this  company 
shall  be  entitled  to  certificates  of  their  shares,  duly  signed 
by  the  President  and  countersigned  by  the  Secretary.  The 
certificates  of  stock  shall  bfc  numbered  and  registered  as 
they  are  issued.  Transfers  of  stock  shall  only  bo  in:xl«-  mi 
the  books  of  the  company,  either  in  person  or  by  attorney, 
and  the  possession  of  stock  shall  not  be  regarded  as  evi- 
dence of  ownership  of  the  same,'  unless  it  appears  upon  the 
stock  books  of  the  company  that  said  certificate  was  issued 
or  duly  transferred  to  the  holder  of  the  same. 

XII DEBTS. 

No  debt  shall  be  contracted  against  the  company 
except  by  order  of  the  Board  of  Directors. 

XIII — DIVIDENDS. 

Dividends  shall  be.  made  not  In  excess  of  the  net 
earnings  of  the  company  at  the  close  of  every  fiscal  year, 
which  shall  be  on  the  thirty-first  day  of  December  of  every 
year ;  or  oftener  as  the  Board  of  Directors  may  see  fit. 

XIV CORPORATE    SEAL. 

This  company  adopts  as  its  corporate  seal,  the  device 
described  as  follows :  A  pick  and  shovel  crossed,  surrounded 
by  the  name  of  the  company. 

XV AMENDMENTS. 

These  by-laws  may  be  changed,  amended  or  revoked 
at  any  time,  by  a  two-thirds  vote  of  the  Board  of  Directors. 

The  charter  and  by-laws  being  adopted,  and  the 
officers   elected,   the   organization   of  the  corporation 


MINING  CORPORATIONS,  DOMESTIC.  321 

is  complete,  and  the  minutes  proceed   to  note  busi- 
ness as  it  may  be  transacted. 

Reports  and  Certificates  Required. 

After  payment  of  the  last  instalment  of  capital 
stock  the  President  ai?d  a  majority  of  the  Board  of 
Directors  are  required  by  §  875  to  record  a  certifi- 
cate in  the  office  of  the  Secretary  of  State  as  follows: 

CERTIFICATE    OF    FULL    PAID    STOCK. 

STATE  OF  COLORADO,  County  of  San  Miym-l:  ss. 

The  undersigned,  Franklin  1'.  carpenter,  President, 
and  /•:/&«  rt  1.  lii:<icraldf  Director,  constituting  a  majority 
•  •I  the  Directors  of  The  Yellow  Bun  Minitnj  Cumimny,  do 
li'ifby  certify,  in  accordance  with  Section  875  of  the  Re- 
it  utes  of  said  State  that  the  amount  of  the 
capital  stock  of  said  company,  as  fixed  and  limited  by  its 
Articles  of  Incorporation,  is  $100,000,  and  that  tin-  whole 
amount  of  said  stock  Jias  been  paid  in.  That  $10.000  there- 
of was  paid  in  cash  and  $90,000  was  paid  for  by  the  pur- 
chase of  mining  property. 

Witness  our  hands  this  5th   day   of  February.  A.  D. 
1908. 

FRANKLIN    R.    CARPENTER.    President. 
ELBERT  F.   FITZGERALD,  Director. 

STATE  OF  COLORADO,  County  of  San  Miguel:  ss. 

n kl in  R.  Carpenter  and  Elbcrt  F.Fitzgerald,  being 

duly   sworn,    say    that   they   are  the   officers   named   in   the 

foregtring  Certificate,  and  constitute  a  majority  of  the  Board 

i  >i  rectors   of  said   company:    that    they   have  Heard   said 

!  and  know  the  contents  thereof,  and  that   tin- 

.  matters  and  things  therein  stated  are  correct  and  true. 

FRANKLIN   R.   CABPEMKI:. 
ELBERT  F.  FITZGERALD. 

Sworn    and    subscribed    before   me    this   fifth   day    of 
February,  A.  D.  1908.  <'nrti*  L.  Greenwood, 

[SEAL.]  Notary  Public. 

A  copy  of  said  certificate  is  also  to  be  filed  and 
recorded  in  the  Recorder's  office  of  each  county  where 
business  is  done. 

It  is  held  that  when  the  capital  stock  is  fully 
paid  up  it  is  the  duty  of  the  officers  to  make  and 
record  such  certificate. — Austin  v.  Berlin,  13  Colo.  200. 

Annual  Report. 

By  Colorado  Revised  Statutes  §  911,  an  annual 
report  is  required  to  be  filed  in  the  office  of  the  Secre- 

11 


322  MINING  CORPORATIONS,  DOMESTIC. 

tary  of  State  within  60  days  from  January  1st.  The 
Penalty  for  failure  is  personal  liability  of  all  offi- 
cers and  directors.  The  Act  requires  information  and 
items  in  detail  never  previously  exacted  and  while 
the  following  form  is  for  its  own  facts  in  strict  com- 
pliance with  the  Statute,  the  Act  is  so  worded  that 
its  terms  must  be  studied  with  reference  to  the  status 
of  each  corporation  when  about  to  comply  or  at- 
tempt to  comply  with  its  obscure  and  inquisitorial 
demands. 

ANNUAL    REFOKT     "T     MINING     <  '<  »Kr<  HJATI"  \  . 

In   compliance  with   the  terms  of   Section    '.HI    of   the 
Revised  Statutes  of  the  State  of  Colorado,  Tin    Ifmijilt   / 
Mining   Company   makes   and    files    this    annual    report.    :m<l 
says  : 

1.  The  names  of  its  officers  and  Directors  and  their 
several    places    of    residence,    together    with    the    street     «>r 
business    address    of    such    officers    and    Directors,    are    as 
follows  : 

1'rosident  and  Director,  George  C.  Buell,  of  Pitts- 
burg,  Pennsylvania. 

Vice-President  and  I»in«tnr.  <;t-o.  \V.  Kret/ini:er,  of 
1  <•:;«;  Monadnork  Ulo.-k.  Chicago,  III. 

Treasurer  and  Director.  Thomas  I.amMe.  of  •_'"]•_' 
Larimer  street,  Denver,  Colorado. 

Secretary.  Win.  llyrd  Page,  of  NO.  '.'.".•_'  i:«iuital)le 
Building,  Denver.  Colorado. 

Superintendent     or     Mana^  r       Thomas     K      Crawford. 

of  No.  MS  Marion   Street,   Dearer,  c«,io. 

2.  The    amount    of    Its    rapital    stork    as    fixed    and 
determined    by    its    Articles    of    Incorporation     land    amend 
ments    thereto)    is   $100,000. 

3.  The  proportion  of  such  capital  stock  actually  paid 
in    is    $100,000,    of   which    $25,000    was    paid    in    cash,    and 
$75,000  was  paid  by  purchase  of  mining  property. 

4.  The  amount  of  the  indebtedness  of  said  corpora 
tion  at  the  date  of  filing  this  report  is  $5,000. 

5.  Said   Corporation   is   now    engaged   in   the   active 
operation  of  its  business  within  the  State  of  Colorado. 

6.  It  has  no  personal  property  except  tools    supplies 
and  office  furniture.     It  has  twenty  men  on  pay-roll,  and  is 
working  a   producing  mine  with  no  lien  encumbrance. 

7.  The    property    of    said    Corporation    within    this 
State  is  located  in  the  County  of  Park,  and  consists  of  two 
Lode  Mining  Claims,   of  which  the  Roosevelt  is  held   under 
letters  patent  of   the  United  States,   and  the  Colonel   Wood 
is   held  by  possessory  right  on  the  public  domain. 

8.  The    amount    of    work    done    and     improvements 
made    on    said    property   since    the    time    of    filing    its    last 
annual    report    is   $20,000,    expended    in   new   hoisting   plant 
and  the  development  and  working  of  its  mines. 


.MINING  CORPORATIONS,  DOMESTIC.  323 

Witness  the  corporate  name  and  seal  of  said  Company, 
a  I  tin-  liaiul  of  its  President,  this  4th  day  of  .lanuary.  A.  D. 

|SI:AI..]  Tm:   Ki»n;n    Kn>i:i:   MINING   COMPANY. 

Hy    C,I:M.    C.    P.n:i.i..    President. 
At'. 
WM.    }\\  i;i>    PALI:.    Seeivtary. 

STAI  -  !;AI>M.   City    and    County    nf    Ihunr:   ss. 

Mr«  in.-,  the  snl.srril.er.  a  Notary  Public,  in  and  for 
said  County.  personally  appear. ••!  Qeorgi  <'.  i:n<ll.  President, 
and  U'm.  Byrd  /'".</'  .  Sr.-retary  of  The  Knmjli  />'/</</•  Miniini 
('niiijiiiiin.  who  ln-inj:  duly  sworn.  each  for  himself,  saith 
that  he  lias  read  the  Keport  signed  by  sai<i 

0.  Hi"  II.  President,  and  that  the  same  and  the  matters 
and  things  therein  stated  are  true. 

OEO.  C,   P.rn.i  . 
WM.     P.MM.     1' 

Sworn  :md  subscribed  before  mo.  this  Ith  <lay  of 
January.  A  I>  1908. 

Arthur  if.   i/or 

[SEAL.]  Notary     Pill. lie. 

Other  details  are  required  for  ditch  companies 
and  still  others  for  coal  mining  corporations. 

Such  report  must  be  signed  by  the  President 
and  verified  by  the  President  and  Secretary  and  the 
corporate  seal  attached. 

In  either  form  where  the  stock  has  been  paid 
up  by  purchase  of  the  mine,  the  certificate  must  so 
state. 

AKTICI.I:S    ., i-    [NCOBPOBATIOV      PITCH    C"\I^\^^. 

Preamble  same 

ici  i:  i.  The  name  of  said  company  shall  he  "The 
Ih-lnjn-  I>iteh  Company." 

ici .1:  L'  The  ol.jeets  for  which  said  company  Is 
created  are  to  construct  a  ditch  nnd  keep  and  maintain  the 
samo  from  th<  s1i-»un  kmurn  »/*  lf<nii-in>i  l'»>l:  nf  th<  Uruml. 
tii]tl>it\i)  such  Stream  <lt  n  jxnnt  nhnnt  ma  i/iKtiti  r  inilr  alinrc 

ntiirli.   <in<l   alxnit    <,iu     lnni<lr<<l    ;/»ir»/x    In  l>»<-    I 

CUtJ.  <l>t<l  fift.H  f"  (  HHi-tlmiKt  from  h,n>  i>in<  t»<  hhf.nl  />. 
/'  .  tin  Iin>  nf  xni'l  ilitrli  ninniiKj  tin  /<•  uml 

flistnnn-  »f  s,irr,i/  if  /,»,.v.x •//,/,.  .v.,  »/x  to  dCSCHbi  "/lii  Inn 
nf  xnitl  ilitch  a*  inii>-  us  muit  n<  ."  i  The  wat«-r  of  said  ditch 
to  be  used  and  sold  for  placer  mining. 

AI;TI»  i.i:  7.  The  stock  of  said  company  shall  be  as- 
sessnhle.  upon  majority  vote  at  stockholders'  meeting,  as 
required  by  law. 

ARTICLES  3,  4,  f>,  0,  8  and  9  and  acknowledgment 
same  form  as  on  />. 

The  stream  tapped,  head  of  ditch,  line  of  ditch 
and  intended  use  of  water  must  always  be  stated; 


324  MINING  CORPORATIONS,  DOMESTIC. 

also  the  location  of  the  reservoir  if  a  reservoir  is  to 
be  constructed. 

Any  surplus  water  they  are  compelled  to  keep 
for  sale,  at  rates  fixed  by  County  Commissioners. 

SMKLTINCJ     AND     OHK-SA  M  IM.I  \  (i     COM  I'A  XIES. 

The  following  Articles  stating  the  purposes  of 
organization  are  taken  from  records  filed  by  operat- 
ing companies.  The  other  Articles  for  such  or  other 
like  companies  should  be  substantially  in  the  above 
form,  always  observing  that  the  article  (No.  7)  refer- 
ring to  assessability  of  stock,  and  the  requirement 
to  print  "Assessable"  or  "Non-Assessable"  on  the  face 
of  the  stock  certificate  is  confined  to  ore-reducing, 
mining  and  tunneling  companies.  —  §  975. 


(The  Pueblo  Smelting  and  Refining 

ARTICLE  2.  The  objects  for  which  the  said  company 
hereby  formed  is  created  shall  l>e  :  To  buy  and  sell  ores, 
metals  and  other  furnace  products;  to  smelt  ami  redm  •<• 
lead,  gold,  silver,  copper  ami  other  ores.  :m<l  retine  bullion  : 
manufacture  lead,  copper  and  imn  products  and  articles  of 
merchandise,  and  do  a  LT.  -m  ral  smelting,  rdinin^  ami  m 
lurgical  business;  to  erect  necessary  buildings,  mills,  ma- 
chinery and  appliances:  purchase  materials  for  tin-  proper 
working  thereof  ;  and  do  any  and  all  other  things  necessary, 
proper  or  requisite  to  carry  Into  effect  the  objects  aforesaid. 

(The   Omaha  and   Grant   Kini-Itimj   nnri   Iftfinimj  Company.) 

ARTICLE  2.  The  nature  of  the  business  to  be  trans- 
acted shall  be  : 

1st.  —  The  purchase,  lease,  erection  and  operation  of 
smelting  and  refining  works,  and  the  smelting  and  refining 
therein  of  gold,  silver,  and  other  valuable  ores  ami  me1 

2nd.  —  The  purchase,  lease  and  operation  of  mints  and 
mining  property,  for  the  purpose  of  obtaining  said  gold. 
silver  and  other  valuable  ores. 

3rd.  —  The  purchase  of  gold,  silver  and  other  valuable 
ores  and  metals  for  smelting  and  refining,  and  the  sale  and 
disposal  of  the  products  thereof. 

4th.  —  To  acquire  by  donation,  purchase,  lease,  or 
otherwise  real  or  personal  property  of  any  kind,  and  to 
use,  maintain,  enjoy,  and  dispose  of  the  same  for  the  benefit 
of  said  corporation. 

(The  Taylor  d  Brunton   Ore  Sampling  Company.) 

ARTICLE  2.  The  objects  for  which  said  company  is 
created  are  to  acquire,  hold  and  operate  mills  and  works 
at  and  near  Aspen,  in  said  County  of  Pitkin,  for  the  crush- 


MINING  CORPORATIONS,  DOMESTIC.  325 

in::,  sampling  and  testing  of  mineral-bearing  ores  ;  and  to 
luiy,  sell,  assay,  hold,  store,  ship  and  deal  in  such  ores 
ami  their  products  on  its  own  account,  and  as  factor  or 
auvm  for  others;  and  to  do  all  things  incident  to  the  gen- 
eral business  of  maintaining  and  operating  such  mills  and 
works,  and  dealing  in  all  kinds  of  mineral-bearing  ores  and 
the  i>rodiH-ts  and  proceeds  thereof. 

Filing  Fees — Domestic  Corporations. 

On  filing  its  Articles  in  the  office  of  the  Sec- 
retary of  State  each  domestic  corporation  is  re- 
quired to  pay  $20  for  the  first  $50,000  of  its  capital 
stock  and  20  cents  for  each  additional  $1,000  of  stock. 

For  Certificate  of  Authority,  $5. 

Filing  impression  of  seal,  $2.50. 

On  filing  of  certificate  of  paid  up  stock,  $2.50, 
plus  5  cents  for  each  $1,000  of  stock  in  excess -of 
$50,000. 

On  increase  of  capitalization,  20  cents  for  each 
$1,000. 

Amendment  of  articles,  $5. 

Change  of  name,  $25. 

Filing  Fees — Foreign  Corporations. 

$30  for  the  first  $50,000  of  its  capital  stock,  and 
30  cents  for  each  additional  $1,000  of  stock. 

Certificate  of  Authority,  $5. 

Filing  impression  of  seal,  $2.50. 

Copy  of  law  under  which  organized,  $5. 

Designation  of  agency,  $5. 

Filing  certificate  of  paid  up  stock;  same  as  for 
domestic  corporation,  supra. 

On  increase  of  capitalization,  30  cents  for  each 
$1,000. 

Amendment  of  Articles,  $5. 

Change  of  name,  $25. 

license  Tax. 

By  the  Revenue  Act  of  1907  all  corporations,  do- 
mestic or  foreign,  are  charged  an  annual  license  tax 
of  two  cents  upon  each  $1,000  of  their  capital  stock. 
The  tax  is  payable  to  the  Secretary  of  State  on  or 
before  May  1st.  The  penalty  for  failure  to  pay  the 
tax  is  a  forfeiture  of  the  right  to  do  business  in 


326  MINING  CORPORATIONS,  DOMESTIC. 

the  State,  besides  an  addition  of  one-tenth  to  the  tax 
for  each  six  months'  default.  This  tax,  as  originally 
imposed  in  1902,  discriminated  against  foreign  cor- 
porations by  assessing  them  at  a  greater  percentage, 
and  was  declared  void  by  Am.  8m.  Co.  v.  Lindsley, 
,W'i  U.  8.  103,  whereupon  the  act  was  amended  as 
above,  taxing  both  sorts  equally,  so  that  it  is  now 
doubtless  valid  as  to  both  classes. — 34  Colo.  2JfO;  82 
P.  531. 

Assessments  on  Stock. 

By  R.  S.  §§  ina-nx.'  provisions  are  enacted  for 
the  assessment  of  shares  of  companies  \vhose  stock 
is  made  assessable  under  the  charter  or  "by  the 
laws  of  this  State."  The  assessment  is  to  be  made 
by  action  of  the  Board  of  Directors  by  a  majority 
vote,  notice  of  meeting  being  first  given  to  ciu-h 
Director.  No  greater  assessment  than  10  per  r.-ni. 
can  be  made  at  one  time,  and  a  second  assessment 
must  not  be  within  thirty  days  after  date  of  sales 
under  the  previous  assessment. 

The  assessment  is  made  payable  'iininc  liatHy" 
and  if  unpaid  after  thirty  days,  is  < -onsideivd  delin- 
quent, and  may  be  advertised  for  thirty  days  in  a 
daily  paper  published  at  the  place  of  the  chief  office 
of  the  company,  and  also  in  a  daily  paper  published 
where  the  mine  is  located  (with  provisions  for  cases 
where  daily  papers  are  not  published). 

If  not  paid  within  twenty  days  "from  the  date 
the  same  became  delinquent,"  the  secretary  is  em- 
powered to  sell  the  shares  at  public  auction  in  front 
of  the  chief  office  of  the  company  to  the  highest  bid- 
der for  cash. 

The  Act  read  literally,  makes  the  sale  to  nmn1 
off  within  the  period  of  publication;  but  it  must 
mean,  if  it  mean  anything,  that  the  sale  is  to  take 
place  not  less  than  twenty  days  after  the  expiration 
of  the  thirty  days'  publication. 

The  Act  further  requires  notice  to  be  sent  to 
each  stockholder,  informing  him  of  the  assessment. 


MINING  (CORPORATIONS.  DOMESTIC.  87 


F«.KM    «•!••    K]:s"i.rTi»N    T,  .    ASS: 

Resolved,  That  an  assessment  of  five  per  cent,  is 
hereby  levied  and  made  up<m  each  and  every  share  of  the 
capital  stork  of  this  corporation,  payable  immediately  at  the 

otlice  of   the  company  to  (;««,•</,     !/.    Scott,   the    treasurer. 

It'E    OF    ASSKSSMKNT. 

Office  of   The   /•;./•/>« -riim-nt    Mining  Company. 
Equitable   Building. 

Ih  nr>  /-.    r, •/....    ./,/;/.    /.    7908. 
To     H.    /•;.     liriili'Hinii.    Sio.-khohler  : 

You  are  hereby  notified  that  :it  a  regular  meeting  of 
the  Hoard  of  Directors  of  Tlie  Kxperiment  Mining  Company 
this  day  held  at  the  otli< •«•  <>f  said  company.  l>y  a  majority 
vote  of  all  the  directors,  each  and  <  \.  i  \  share  of  the  cap- 
ital stock  of  said  company  wafl  uaeSBed  /ire  per  cent,  on 
the  par  value,  such  per  cent,  amounting  to  15.00  on  your  100 
shares  of  stock,  payable  immediately  to  Qcorgc  M\  Kn,u . 
th«-  Treasurer,  at  this  otli..-.  address  above  given,  and  that 
such  assessment,  if  not  paid  on  or  before  the  3d  day  of 
an/.  /.'»>x,  will  l»e  delinquent,  and  your  stock  will  there 
upon  he  advertised  i<>r  sale,  the  sale  to  take  place  on  the 
28th  day  of  \lnn-h.  /I'fiS.  a«-coi-d:nj;  to  the  terms  of  Se.'tiou 
-  atutt  s  of  « 'olorado. 

C.  S.  WALLACE,  Secretary. 

It  does  not  seem  that  this  Act  can  refer  to  com- 
panies by  whose  articles  the  stock  is  made  non- 
assessable. Nor  does  it  apply  to  assessments  for  in- 
stalments of  the  original  purchase  price  of  the 
shares,  sale  of  which  on  default  is  provided  for  by 
/,'.  G 

Irregular  Action. 

A  company  which  lias  habitually  neglected  all 
formalities  cannot  plead  the  want  of  them  to  escape 
lialiility.-r;.  I.  /;.  Co.  v.  Bank,  93  F.  23.  So  held 
whore  it  allowed  one  director  to  assume  entire  man- 
agement.— Robinson  Co.  v.  Johnson.  50  P.  21~).  A 
resolution  of  the  Board  is  not  necessary  to  bind  the 
company  where  it  has  had  value  received  with  knowl- 
edge.— McKcn:;>  ,  doorman  Mines,  88  F.  112. 

Fraudulent  Organization. 

A  company  may  sue  its  organizers  where  the 
real  priro  paid  is  less  than  that  represented  to  the 

kholders. — Pittfburg  Co.  v.  Spooner,  42  N.  W. 
.''''.  n  t//  8t.  if.  l','.i.  Acts  of  directors  distin- 
guished from  acts  of  the  company. — SummerUn  v. 


328  MINING  CORPORATIONS,  DOMESTIC. 

Fronteriza  Co.  Jtl  F.  2J9.  Bona  fide  holder  of  stock 
issued  on  over  valuation  not  liable  to  creditors. — 
Du  Pont  v.  Tilden,  J,2  F.  87. 

Where  mining  property  is  located  or  purchased 
by  an  officer  of  the  corporation  his  liability  to  the 
company  depends  upon  whether  or  not  he  has  been 
guilty  of  a  breach  of  trust. — Calumet  Co.  v.  Phillips, 
12  P.  106.'!;  Lagarde  v.  Anniston  Co.  20  M.  R.  ~>',~>: 
28  So.  199. 

The  Manager's  knowledge  of  value — of  ore  shoots 
discovered  in  the  mine — is  the  property  of  his  com- 
pany.— Clark  v.  Buffalo  Hump  Co.  122  F.  248. 

A  corporation  may  be  held  in  equity  to  refund 
price  of  stock  sold  on  fraudulent  prospectus  and  fraud 
of  its  promoters.— Cox  v.  National  Oil  Co.  56  8.  E. 
/•''/- 

Inexperienced  persons  buying  stock  have  a  right 
to  rely  upon  the  statements  of  the  promoters,  and 
a  purchaser  has  his  action  where  they  falsely  as- 
serted that  the  mine  was  free  from  debt. — Tinker 
v.  Kier,  94  8.  W.  501. 

Reorganization. 

Where  a  new  company  is  formed  with  same 
stockholders  or  other  like  suspicious  incidents  it  is 
but  a  successor  and  liable  for  the  debts  and  cove- 
nants of  the  old  one. — Higgins  v.  California  Co.  ~>~> 
P.  155. 

Agent — Manager — Officers. 

The  President  and  Secretary  alone  have  no  right 
to  appoint  a  general  agent. — Johnson  v.  Sage,  44  P- 
641. 

Parties  dealing  with  general  agents  of  foreign  cor- 
poration have  the  right  to  assume  that  he  has  full 
powers.  Rathbun  v.  Snow,  123  N.  Y.  843;  25  N.  E. 
319.  Superintendent  has  right  to  buy  current  sup- 
plies.— Stuart  v.  Adams.  89  Cal.  367;  26  P.  970. 

The  Secretary  of  the  Company  has  no  power,  by 
virtue  of  that  office,  to  contract  for  the  company,  but 
the  Secretary  may  be  made  the  company's  agent,  and 


MINING  CORPORATIONS,  DOMESTIC.  329 

his  acts  then  bind  it. — Ross  Oil  Co.  v.  Eastham,  85 
r.  "i31.  The  same  as  to  its  president. — Wood  v.  Sagi- 
iiaw  Co.  105  N.  W.  101.  Complaint  held  good  where 
a  stockholder  charged  the  company  with  attempt  to 
depress  the  value  of  the  stock  and  of  intention  to 
not  perform  the  annual  labor  and  relocate  the  com- 
pany's claims. — Glover  v.  Manila  M.  Co.  J04  N.  W.  261. 

An  agent  acting  in  bad  faith  forfeits  commis- 
sions. Williams  v.  McKinley,  65  F.  .'/.  Company 
1> resumed  to  know  the  fraud  of  its  agents.  Argentine 
Co.  v.  Betf-lii-t.  /s  Utah,  183;  55  P.  559. 

May  offset  collection  against  wages.  Hood  v. 
Hampton  Co.  Wit  /  [08.  Principal  cannot  accept 
benefits  and  repudiate  agency.  Oenter  v.  Conglom- 
erate Co.  23  Utah,  165;  6')  P.  362.  Barnard  v.  Roane 
Co.  11  M.  R.  94;  2  S.  W.  21. 

No  authority  to  sell  the  future  product  of  the 
mine;  agent  had  contracted  for  more  than  the  mine 
could  produce.  Blackmer  v.  Summit  Co.  187  III.  32; 
58  N.  E.  289.  Persons  dealing  with  an  agent  when 
agent's  authority  is  in  writing  are  bound  to  take  no- 
tice thereof.  Id. 

Mine*  manager  has  no  power  to  bind  the  corpora- 
tion  for  medical  services  to  injured  employees.  Rpel- 
inmi  v.  Gold  Co.  '.<  »'  P.  597.  But  see  Mt. 

Wilson  Co.  v.  Burbridge,  11  Colo.  App.  487;  53  P.  826. 

A  mine  manager  cannot  in  general  borrow  money 
or  pledge  the  credit  of  his  company.  Hawtayne  v. 

rne,  1  M.  R.  285;  7  M .  d  W.  595;  Breed  v.  Bank,  1 
M.  J{  /';::  /  <'»!<>.  ;*l;  Cons.  Gregory  Co.  v.  Raber, 
1  M.  R.  Jf05;  1  Colo.  511.  An  agent  of  two  companies 
has  the  right  to -exchange  supplies.  Adams  Co.  v. 
Senter,  1  M.  R.  241;  26  Mich.  73.  An  agency  for  the 
care  of  property  may  be  both  created  and  proved  by 
parol.  Hardenbergh  v.  Bacon,  1  M.  R.  352;  38  Cal. 

The  appointment  of  an  agent  for  a  corporation 
to  make  a  contract  for  work  and  labor  need  not  be 
made  under  seal  or  by  resolution  of  the  board.  Crow- 
ley  v.Genesee  Co.  4  M.  R.  11;  55  Cal.  213.  Agent  can- 


330  MINING  CORPORATIONS,  DOMESTIC. 

not  act  for  both  parties  without  their  consent.  Fin- 
erty  v.  Fritz,  1  M.  R.  437;  5  Colo.  /?//. 

General  powers  of  superintendents,  or  general 
agents  in  charge  of  mine,  will  be  recognized  without 
proof,  as  covering  all  the  ordinary  local  business  of 
the  concern;  and  persons  dealing  with  them  have  a 
right  to  assume  this,  unless  otherwise  notified. 
Adams  Co.  v.  Senter,  1  M.  R.  2Jtl;  26  Mich.  13.  Gen- 
eral power  of  attorney  implies  no  power  to  make 
promissory  note. — Washlurn  v.  Alden,  1  M.  R.  320;  5 
Cal.  'ft!.!. 

Where  directors  deal  with  and  make  profit  out 
of  their  corporation  the  burden  is  on  them  to  show 
that  the  transaction  was  fair  and  open. — Baker  v. 
Montana  Co.  89  P.  66. 

Where  a  corporation  allows  its  president  and  gen- 
eral manager  to  practically  control  its  business  it  is 
liable  on  a  note  given  by  such  officer. — McKinley  v. 
Mineral  Hill  Co.  89  P.  ','•> •>• 

Miscellaneous  Rulings. 

Incorporators  are  liable  for  preliminary  ex- 
penses.— Hersey  v.  TI///V.  //  />.  N.I  ; ;  Nee  Hecla  Co. 
v.  O'Neill  J9  N.  Y.  Sup.  592;  Winters  v.  Hub  Co.  57 
F.  281. 

And  the  company  may  be  held  for  the  contracts 
of  its  promoters  without  formal  adoption  of  the  same 
by  resolution  of  the  Board. — Possell  v.  Smith,  88  P. 
1064-  Distinction  between  de  facto  and  de  jure  di- 
rector.— Rozecrans  Co.  v.  Morey,  43  P.  ." 

Corporate  officers  may  recover  on  a  quantum 
meruit  for  services  in  excess  of  their  official  duties. 
— Gumaer  v.  Cripple  Creek  Co.  90'  P.  81;  Severson 
v.  Bimetallic  Co.  44  P.  7.0;  Felton  v.  West  Co.  40  P. 
10;  Ruby  Co.  v.  Prentice,  52  P.  210. 

Amendment  of  Articles. 

This  subject  in  Colorado  is  regulated  by  the  Act 
of  1907.— R.  S.  §§  878-886.  A  meeting  of  stockholders 
must  be  called  for  on  30  days'  notice,  and  two-thirds 
must  assent  to  the  amendment. 


FORKK'.N   tt  'KI'oKATK  >NS. 

Dissolution. 

Provision  is  made  for  the  dissolution  of  solvent 
corporations  desiring  to  go  out  of  business  by  pub- 
lication and  filing  of  notices,  without  judicial  action 
thereon.— R.  S.  §  - 

For  consideration  of  the  rights  of  stockholders 
when  the  company  has  quit  business  and  has  no 
known  Board  of  Directors,  see  7V;/  <>.  v. 

Aye, 


FOREIGN  CORPORATIONS. 


A  corporation  has  no  recognized  existence  except 
by  comity  outside  of  the  State  of  its  organization. 
It  is,  however,  always  allowed  to  do  business  else- 
where by  complying  with  certain  statutory  conditions 
for  the  protection  of  local  creditors,  such  conditions 
usually  including  that  it  file  a  copy  of  its  Articles 
\\ith  the  Secretary  of  State  and  with  the  County 
Recorder  of  the  place  where  it  is  intended  to  carry 
on  its  mining  operations  or  other  principal  business, 
and  that  it  designate  a  local  agent  upon  whom  : 
ess  may  be  served. 

Such  conditions  for  Colorado  are:  That  it  file  a 
copy  of  its  charter  in  the  office  of  the  Secretary  of 
State;  or  if  "incorporated  by  certificate  under  any 
general  incorporation  law.  a  copy  of  such  certificate 
and  ot  such  general  incorporation  law  duly  certified 
and  authorized  by  the  proper  authority  of  such  for- 
eign State,  Kingdom  or  Territory." 

That  it  file  with  the  Secretary  of  State  and  in 
the  office  of  the  County  Recorder  a  certificate  desig- 
nating its  principal  place  of  business  and  designat- 
ing an  agent  residing  at  such  principal  pla^e  of  Imsi 
ness  upon  whom  process  may  be  served. — §§  916,  .'>/?. 

A  failure  to  comply  with  either  of  the  above  re- 
quirements imposes  personal  liability  on  its  officers, 
agenis  and  stockholders  for  the  debts  of  the  company. 

It  must  also  file  an  impression  of  its  corporate 


332  FOREIGN  CORPORATIONS. 

It  must  receive  from  the  Secretary  of  State  a 
certificate  that  all  the  filing  fees  and  taxes  have  been 
paid;  commonly  called  a  certificate  of  authority. — § 
910. 

DESIGNATION  OF  PROCESS  AGENT. 

STATE  OP  NEW  YORK,  County  of  New  York:  ss. 

It  is  hereby  certified,  That  the  Mohawk  Alininu 
Company,  a  corporation  organized  under  the  laws  of  said 
state,  doth  hereby  designate  that  the  "principal  place 
where*  the  business  of  such  corporation  shall  be  carried  on 
in  the  State  of  Colorado,"  is  Central  City,  County  of  Oil  inn. 
State  of  Colorado,  and  that  Henry  C.  Becker,  residing  at 
said  principal  place  of  business,  Js  the  authorized  agent  of 
said  company,  upon  whom  process  may  be  served. 

Witness  the  corporate  name  and  seal  of  said  com- 
pany, and  the  signatures  of  its  President  and  Secretary,  this 
3d  day  of  February,  A.  D.  1907. 

MOHAWK  MINING  COMPANY, 

[SEAL.]  J.  it  it  i  SHIN  WALKER,  President. 

CLARENCE  CART,  Secretary. 

STATE  OF  NEW  YORK,  County  of  New  York:  ss. 

I,  Herbert  E.  Dickson  (195  Broadway),  Commissioner 
of  Deeds  of  the  State  of  Colorado,  duly  commissioned  and 
sworn,  in  and  for  said  County,  do  hereby  certify  that 
J.  Brisbin  Walker,  President,  and  Clarence  Gary,  Secretary, 
of  the  within  named  Corporation,  who  are  personally  known 
to  me  to  be  such  President  and  Secretary  of  said  Corpora- 
tion, personally  appeared  before  me  this  day,  and  acknowl- 
edged the  within  Instrument  (in  duplicate)  to  be  their  free 
and  voluntary  act  and  deed,  and  the  free  and  voluntary  act 
and  deed  of  said  Corporation. 

Witness  my  hand  and  official  seal  this  Sd  day  of 
r<-i,i'nnrn.  A.  I  >.  1907.  Herbert  E.  Dickson, 

|  SKAL.]  Commissioner  of  Colorado. 

One  copy  of  the  above  instrument  must  be  filed 
with  the  Secretary  of  State,  and  one  in  the  office 
of  the  Recorder  of  the  proper  county. 

A  similar  form,  not  naming  the  agent,  but  desig- 
nating him  in  general  terms,  was  held  sufficient  In 
Goodwin  v.  Colorado  Co.  110  U.  8.  1. 

Discriminations  Against  Foreign  Corporations. 
Besides  the  above  special  requirements  it  is  de- 
clared that  they  "shall  be  subjected  to  all  the  lia- 
bilities, restrictions  and  duties  which  are  or  may  be 
imposed  on"  domestic  corporations.  Where  they 
mortgage  their  property  they  must  give  public  no- 
tice so  that  prior  creditors  may  protect  themselves. 


TENANTS  IN  COMMON.  333 

They  must  file  annual  reports  the  same  as  domestic 
companies.  And  the  re-organization  or  liquidation 
of  foreign  companies  to  the  prejudice  of  local  share- 
holders is  attempted  to  be  prohibited. — R.  8.  §§  911, 

."//.  . 

Domestic  Charter  Preferable. 

The  provisions  of  the  above  and  like  statutes  in 
other  states,  together  with  the  fact  that  a  foreign 

oration  is  liable  to  attachment  for  debt  as  a  non- 
resident, and  must  file  special  security  for  costs  where 
a  plaintiff,  renders  a  domestic  organization  prefer- 
able in  most  cases. 

Domestic  Organization  by  Non-Residents. 

The  Corporation  Law  of  Colorado  does  not  in 
terms  require  the  organizing  associates  to  be  citi- 
zens or  residents;  and  although  a  domestic  organiza- 
tion composed  entirely  or  substantially  of  non-resi- 
dents would  be  practically  in  some  respects  a  foreign 
•'oration,  yet  its  validity,  at  least  when  collaterally 
attacked,  seems  to  be  conceded. — Humphreys  v. 
Mooney,  4  M.  R.  16;  5  CV 


TENANTS  IN  COMMON. 


Right  to  Work  the  Mine. 

Two  or  more  persons  owning  undivided  inter- 
ests in  mining  Around  are  tenants  in  common,  but 
unless  working  it  together  by  agreement  are  not  part- 
ners. 

At  Common  Law  each  could  work  without  ac- 
counting to  the  other.  This  was  changed  by  the 
Statute  of  4  Anne  Oh. 

Most  States  have  adopted  the  tenor  of  that 
Statute  to  wit:  That  the  excluded  co-tenant  may 
have  his  proper  action  for  his  share  of  the  proceeds 
of  the  working. 

When  any  such  statute  has  been  enacted  giving 
the  right  to  an  account  and  taking  away  the  Com- 


334  TENANTS  IN  COMMON. 

mon  Law  right  of  each  to  work  at  his  own  risk  but 
to  his  own  exclusive  profit,,  the  law  seems  to  be: 

That  any  Co-tenant  may  work  the  common  prop- 
erty, at  his  own  risk,  if  he  works  to  a  loss  but  must 
account  to  his  Co-tenants  if  he  works  to  a  profit. 

A  co-tenant  may  lawfully  here  for  oil.  If  he 
finds  it  he  must  account  to  co-tenants,  and  if  he  does 
not,  must  stand  the  expense  alone. — Lone  Acre  Co. 
v.  Swayne  (Tex.),  78  8.  W.  .Mi. 

The  owner  of  the  majority  interest  may,  by 
Statute  in  Idaho,  work  the  mine,  but  may  not  ex 
elude  the  minority  from  access  to  the  property. — 
Sweeney  v.  Hanley,  126  F.  in. 

Where  the  minority  works  the  majority  may  di- 
rect the  management. — Hawkins  r.  N/m/.a//r  Co.  '^ 
P.  433;  33  tP.  ',n. 

Measure  of  Damages  on  Accounting. 

The  Measure  of  Damages  adopted  has  not  been 
uniform.  The  rental  value  of  the  premises  was  al- 
lowed in  the  leading  case  of  Karly  r.  l-'rii-in!.  m 
Grat.  21;  14  M.  R.  r,  I. 

The  value  of  the  coal  in  place  was  allowed  in 
McGoivan  v.  Bailey,  179  Pa.  ,'/7". 

"What  is  just  and  equitably  due"  is  the  measure 
of  accounting  under  Pennsylvania  Statute.-— Fulmefs 
App.  128  Pa.  24.  See  full  note  to  the  case  as  n- 
ported  in  17  M.  R.  .>',>'>. 

Another  line  of  cases  allow  full  share  of  the 
profits  which  is  not  a  just  rule  where  a  plaintiff  has 
assumed  none  of  the  risks. —  U'/7/m///.so//  r.  ./<>/;  r.s.  '/.? 
Va.  562:  19  M.  R.  19;  Job  v.  Putin,,.  L.  n.  >.  /•;,,.  84; 
14  M.  R.  329. 

Where  the  entire  property  is  leased  by  one  Co- 
owner  at  a  fixed  royalty  the  measure  of  damages  is 
plaintiff's  proportion  of  the  Royalty. — Cicil  v.  Clark. 
49  W.  Va.  ','>!>. 

The  co-tenant  is  entitled  to  his  share  of  the 
profits  but  where  defendant  has  worked  to  a  loss 
plaintiff  is  not  entitled  to  any  recovery. — Edsall  v. 


TENANTS  IN  CS  »M.M<  >N 


Merrill,  ->'7   .V.  •/.   Eq.   //};  .WrCo/v/  y.  Oakland  Co.  <!', 
CaL    /.;/;    ;.''   Am.   R.   ft 

In  Illinois  a  single  co-tenant  working  the  mine 
was  treated  as  a  trespasser  in  .  Murray  v.  Haverty, 
7"  ///.  318;  l'i  M.  I!.  .;.'-<.  And  the  law  of  Montana 
as  to  co-tenants  was  construed  with  almost  equal 
severity  in  Anaconda  Co.  v.  Butte  Co.  j3  P.  924; 
Mountain  Co.  v.  Essler,  4-'t  P.  523. 

ruder  the  West  Virginia  Statute  it  is  waste  if 
a  co-tenant  sinks  for  oil.  —  Dangerfleld  v.  Caldwell, 
l.'.i  /  -,-,',:  McNeely  v.  8.  Penn.  Oil  Co.  5£  8.  E. 
These  West  Virginia  and  Montana  cases  construe 
special  Statutes,  and  the  Illinois  decision  is  against 
the  entire  burden  of  the  authorities. 

Relations  to  the  Common  Title. 

A  relocation  by  one  operates  for  the  benefit  of 
all.  even  if  made  unknown  to  the  others,  and  with 
a  change  of  name  of  the  claim.  —  Van  Wagcnen  v. 
Carpenter,  57  r,,in.  ',',.',.  see  p.  125. 

A  tax  title  acquired  by  one  of  the  co-tenants 
enures  to  the  benefit  of  all.  —  Moragne  v.  Doe,  30  So. 
161. 

Possession  by  a  co-tenant  is  not  adverse  without 
notice  to  the  co-tenant  out  of  possession  that  his  title 
is  denied.—  Hi*-),  Victoria  Co.  /};  /  380.  And 
where  the  mineral  and  surface  estates  have  been  sev- 
ered the  possession  of  the  surface  owner  is  not  pns 
session  of  the  minerals.  —  Manning  v.  Kansas  Co.  81 
S.  W.  140. 

They  may  deal  with  each  other  as  with  strangers 
as  to  their  respective  interests  in  the  common  prop- 
erty.— Bissell  v.  Foss,  114  U.  8.  252.  But  they  can 
not  collude  with  one  another  or  with  strangers  to 
deprive  a  co-tenant  of  his  full  share  of  purchase 
money.  See  citations,  p.  282. 

A  co-tenant  may  not  use  the  common  property 
through  which  to  work  other  property  in  which  his 
co-owner  has  no  interest.  —  Peo.  v.  District  Court.  !<> 
M.  R.  734;  <;.'  /'.  0o,  v.  Montana  Co.  60 

P.  1039;  Laesch  v.  Morton,  -:  P. 


336  INDIAN  RESERVATION. 

INDIAN  RESERVATION. 


-  An  Indian  reservation  is  not  a  part  of  the  public 
domain  open  to  exploration,  or  occupation,  and  a 
valid  mining  location  cannot  be  made  upon  it. — 
French  v.  Lancaster,  47  N.  W.  395;  Gibson  v.  Ander- 
son, 131  F.  39.  Nor  can  both  parties  waive  the 
point.— 47  N.  W.  395.  An  attempted  location  made 
before  the  extinguishment  of  the  Indian  title  must 
yield  to  one  made  after  its  purchase. — Kendall  v. 
San  Juan  M.  Co.  9  Colo.  349. 

But  in  Noonan  v.  Caledonia  M.  Co.  121  U.  8.  393, 
the  Supreme  Court  of  the  United  States  have  ruled 
that  on  the  cession  of  the  reservation  the  claim 
becomes  valid.  This  case  was  followed  by  the  affirm- 
ance of  the  Kendall  case  above  cited  (144  U.  8.  658) 
where  the  court  adjudged  that  the  original  location, 
although  not  valid,  might  have  been  made  good  by 
record  in  the  nature  of  a  relocation  within  the  same 
period  of  time  after  the  opening  of  the  reserve,  as  is 
allowed  to  record  from  the  date  of  discovery.  This 
not  having  been  done  an  intervening  locator  who 
entered  after  the  opening  of  the  reservation  was  held 
to  have  the  elder  and  better  title. 

A  claim  within  the  reservation  cannot  be  pat- 
ented.— Copp,  M.  L.  253.  And  the  location  of  scrip 
thereon  is  void.— U.  8.  v.  Carpenter,  HI  U.  8.  547, 

The  court  will  protect  a  right  to  mine  by  license 
from  the  Indian  Nation. — Oolagah  Co.  v.  McCaleb, 
68  F.  86. 

When  a  reservation  is  opened  it  is  not  necessary 
for  mineral  prospectors  to  await  the  issue  of  the 
proclamation. — McFadden  v.  Mt.  View  Co.  87  F.  !'>]. 


FOREST  RESERVES. 


By  Act  of  Congress  March  3,  1901,  26  Stat.  1095, 
the  President  is  authorized  to  create,  by  proclama- 
tion, forest  reserves  in  any  part  of  the  public  lands. 


FOREST  RESERVE.  337 

Certain  particular  Reservations  have  by  special 
act  been  opened  to  the  location  of  mining  claims,  but 
by  Act  of  June  4,  1897,  30  St.  L.  36,  mineral  lands 
in  all  forest  reservations  are  especially  excepted  from 
the  reserve  and  are  open  to  location  and  entry  under 
the  mineral  laws.— 32  L.  D.  SOI.  And  all  mining 
Rights  of  Way  are  allowed  across  them. — 83  St.  L. 

The  discovery  and  location  of  a  claim  on  the 
Reserve  is  made  exactly  as  if  it  were  on  non-reserved 
land,  but  the  Forest  Ranger  is  authorized  to  examine 
and  report  as  to  its  being  a  bona  fide  claim.  His 
duties  in  the  premises  and  the  restrictions  as  to 
ditches  and  timber  cutting  are  set  out  in  a  publica- 
tion l>\  the  department  (1907)  called  the  USE  BOOK. 
The  regulationa  of  the  Department  permit  own- 
of  mining  claims  to  cut  timber  for  actual  mining 
purposes  in  connection  with  the  particular  claim  for 
which  the  timber  is  cut— Par.  20,  SO  L.  D.  28. 


ORE  CONTRACTS. 


An  ore  purchase  contract  between  mine  and 
smelter  for  the  sale  of  ore  is  not  assignable,  as  the 
mine  contracts  for  the  skill  and  integrity  of  that  par- 
ticular smelter. — Arkansas  Val.  8m.  Co.  v.  Belden 

127  U.  8.  379;  Winchester  v.  Davis  Co.  61  F. 
45;  Wheeler  v.  Walton  Co.  64  F.  664. 

Failure  to  receive  pay  justifies  failure  to  make 
future  deliveries. — Cherry  Val.  Co.  v.  Florence  Co. 
>:  /  /•'.  569. 

Delivery  of  ore  to  a  reduction  company,  to  be 
paid  for  after  assay,  is  a  sale  and  not  a  bailment  of 
each  lot  of  ore. — Chisholm  v.  Eagle  Ore  Co.  144  F. 
670. 

A  promise  to  pay  a  debt  out  of  the  proceeds  of 
ore  is  not  an  equitable  assignment  of  such  proceeds. 
—Silent  Friend  Co.  v.  Abbott,  42  P.  318. 


338  ORE  CONTRACTS. 

Action  for  conspiracy  between  officers  of  the 
mine  and  mill  owners  to  obtain  bonus  for  treating 
the  ore — presumptions  and  evidence  in  such  case. — 
Fox  v.  Hale  Co.  Jjl  P.  308. 

A,  in  Michigan,  agreed  to  sell  to  plaintiff,  graph- 
ite ore  to  be  delivered  on  cars  in  Mexico;  held  that 
cause  of  action  for  non-delivery  accrued  in  Mexico. — 
U.  8.  Co.  v.  Pacific  Co.  68  F.  >,','. 

Construction  of  ore  contracts  calling  for  certain 
percentages  of  mineral  and  for  special  assay  values 
with  deductions  for  moisture. — Trotter  v.  Hech-sdirr. 
',  Ml.  85V  7  Atl.  .;./>';  Lehigh  Co.  v.  Trotter,  JO  Atl. 
608;  Anvil  Co.  v.  Humble,  153  U.  8.  540:  Martinez 
v.  Earnshaw,  22  Atl.  608.  Measure  of  damages  for 
failure  to  deliver  ore. — Patrick  v.  Colo.  8m.  Co. 
P.  236. 

Amount  of  moisture  is  determinable  by  tests  of 
like  ore  from  same  mine. — Vietti  v.  Nesbitt.  '//  P.  l~>l. 

The  smelter  is  not  liable  for  mineral  left  in  the 
tailings,  there  being  no  proof  of  negligence. — Guild 
Co.  v.  Mason,  J,6  P.  901. 

Where  an  average  of  a  certain  assay  is  to  be  ac- 
counted for,  one  month  may  make  up  for  another. — 
Fox  v.  Mackay,  51  P.  f>7 1. 

Construction  of  contract  for  delivery  of  ore  "free 
from  foreign  substance." — Worthington  v.  Given .  1} 
So.  739.  Of  ore  breaking  contract  terminable  when 
prejudicial  to'  the  development  of  the  mine. — Anvil 
Co.  v.  Humble.  153  U.  8.  5JfO. 

A  contract  or  promise  to  pay  out  of  the  pro 
ceeds  of  a  mine  becomes  an  absolute  promise  after 
the  lapse  of  a  reasonable  time. — Mclntyre  v.  Ajax  Co. 
IIP.  615;  White  v.  Century  Co.  78  P.  868;  Busby  v. 
Century  Co.  (Utah),  15  P.  125. 

When  the  buyer  refuses  to  receive  the  seller  has 
the  right  to  store  the  ore  and  sue  for  the  price;  or 
to  sell  the  ore  and  recover  the  difference  in  price. — 
Habeler  v.  Rogers,  131  F.  ',.;. 

Contract  construed  to  bind  the  seller  to  furnish 
the  ore  of  its  own  mines. — Shackelford  v.  Sloss  Co. 
36  80.  1005. 


ORE  BUYERS.  339 

A  contract  for  the  ore  of  a  certain  mine  entitles 
the  buyer  to  the  run  of  the  mine  although  the  ore  ten- 
dered from  another  mine  was  not  below  the  agreed 
assay. — Globe  Co.  v.  Tennessee  Co.  85  S.  U.  //77.  A 
contract  to  furnish  coal  from  a  particular  mine  is 
not  fulfilled  by  tender  of  coal  from  other  mines 
though  equally  good. — Hesser  v.  Chicago  Co.  151  F. 


ORE  BUYERS. 


Ore  Book  to  Be  Kept. 

Every  company  or  individual  "engaged  in  the 
business  of  milling,  sampling,  concentrating,  reduc- 
ing, shipping  or  purchasing  ores  in  the  State  of 
Colorado,"  is  required  to  keep  a  book  in  which  shall 
be  entered  at  the  time  of  the  delivery  of  each  lot  of 
ore — 

if.-    Tin-  name  of  the  party  on  whose  behalf  sin -h 
as  stated. 

••ml.      The    name  of  the   teamster.    packer,    or   i.ili.-r 
h    on.    ami    tin-    name    «»f    the 
•In-   team    or   pad    ir.-iin   oVHverini:  such   ore, 
•  /.      The    u.-iirlit    .  r    amount    of    .-very    such    lot    of 

Tin-  name  ami  location  of  the  mine  or  claim 
from  which  it  shall  he  *iate«|  ihat  tin-  same  has  lie, MI 
mineol  or  proCOl 

rh.     -'I'll.-    d  livery  of  any   and   all    1m 

parcc-ls    of   ore. — K.    8.    §  4255. 

The  succeeding  sections  provide  that  parties 
claiming  an  interest  in  ore  delivered  shall  have  the 
privilege  of  examining  such  books  and  for  penalties 
in  case  of  failure  to  keep  the  same.  And  that  neglect 
to  make  proper  inquiries  from  parties  bringing  ore  to 
the  mill  shall  not  excuse  failure  to  comply.  They 
also  attempt  to  make  the  purchaser  criminally  liable 
for  ore  bought  from  mines  held  "contrary  to  any 
penal  law  now  in  force,"  which  was  intended  to  in- 
clude cases  where  possession  had  been  taken  by  vio- 
lence, contrary  to  the  provisions  of  the  Jumping  Act. 
—If.  8.  §§  WZO,  4239. 


340  ORE  BUYERS. 

Bullion  and  Specimen  Buyers. 

A  similar  Act  refers  to  buyers  of  gold  dust, 
amalgam,  bullion  and  gold  specimens,  the  intent  be- 
ing to  produce  means  to  trace  such  property  when 
stolen.  R.  S.  §§  4252-.',.,'.". 

Ore  Bought  of  Wrongful  Mine  Claimant. 

In  1889  the  question  of  the  responsibility  of  the 
ore  buyer  for  ore  taken  by  trespass  having  often 
arisen  and  a  case  of  some  importance  involving  the 
question  then  pending  in  the  Supreme  Court,  an  Act 
was  passed  providing  for  the  case  of  ore  taken  from 
mines,  the  title  to  which  was  in  dispute. 

It  provides  that  a  party  in  peaceable  possession 
under  claim  and  color  of  title  is  to  be  deemed  the 
owner,  and  the  buyer  of  ore,  in  good  faith  is  to  t:iU»- 
title  to  the  ore,  but  that  the  party  out  of  possession 
may  protect  himself  by  notice  to  the  ore  buyer,  the 
following  form  containing  the  substance  required: 

Ihnnr,  Colo.,   .linninnj   it,  1908. 
To  The  Taylor  <&  ttrunton  Kami>lin<j    ]\'nrkx  f /»////>//, 

Take  notice  that  I  .-mi  the  claimant  ami  owner  ;m<i 
entitled  to  the  possession  of  the  Mulitimin  I, <>.]<•  Minim; 
Claim,  situate  in  Creede  Mining  I>islrict.  Coimiy  of  Mineral, 
Slate  of  Colorado  :  Tli;it  Ifirliuril  .1.  /'(///.«/•  and  Tlnnn- 
Cruirfuril  :iml  persons  under  them  art-  mining  and  shipping 
gold  ore  whirls  is  my  property.  I'mm  said  claim  under  the 
name  of  tin-  ri<<is<ni(  />/«»//,<  Lode,  or  uml.-r  some  other 
name.  And  you  are  hm-by  imtiticd  nndrr  the  terms  of  the 
Statute  in  sn<-li  case  made  and  provided  that  you  will  !••• 
held  responsible  f»r  all  ..ns  purchased  and  delivered  from 
said  mine  by  said  /,•/<//<////  .1 .  /'(/.A-.  /•  ami  Thomat  n. 
Cnnrfttnl.  <>r  either  of  them,  or  by  any  person  for  them. 
subsequent  to  the  service  of  this  notice. 

1'  I:\.\K     II.    \V«.i 

The  person  serving  this  notice  must  within  five 
days  thereafter  follow  it  up  with  suit  for  injunction, 
and  provision  is  made  to  limit  the  liability  in  case 
the  injunction  is  not  heard  within  thirty  days,  and 
to  avoid  its  effect  if  the  writ  is  denied  or  afterwards 
discharged,  although  the  plaintiff  may  ultimately 
prove  title.  If  such  notice  is  served  and  followed  by 
obtaining  the  writ  and  the  party  warned  persists  in 


PENAL  PROVISIONS.  341 

buying  the  ores  in  dispute,  he  is  to  be  held  respon- 
sible to  the  person  ultimately  adjudged  the  owner. 

If  suit  has  been  already  brought  when  the  notice 
is  served,  add  to  the  above  form:  (§  4238.) 

"Suit  is  pending  in  the  District  Court  of  Mineral 
County  to  enjoin  the  further  shipping  or  sale  of  ores  by 
said  I'.uties  from  said  claim." 

A  proviso  is  contained  in  the  Act  that  it  shall 
not  protect  against  liability  for  the  purchase  of  ores 
taken  by  persons  holding  claims  under  the  Mine- 
Jumping  Act,  or  ore  stolen  by  lessees. 

Ore  Mined  Under  Claim  of  Right. 

The  suit  above  referred  to,  Omaha  Co.  v.  Tabor, 
16  M.  R.  184;  IS  Colo.  41,  was  decided  later,  holding 
the  ore  buyers  liable  as  trespassers — the  decision 
making  no  reference  to  the  point  really  involved  or 
the  line  of  authorities  relative  to  the  point— that, 
where  personal  property  is  produced  from  real,  by 
the  labor  of  a  party  in  possession  with  claim  and 
color  of  title,  it  becomes  marketable  without  regard 
to  tin'  ultimate  decision  on  the  question  of  who  was 
the  owner  of  the  realty. — Brown  v.  Caldwell,  12  M. 
R.  674;  10  S.  &  R.  ///.  xmith  v.  Idaho  Q.  M.  Co.  II 
P.  878;  Mather  v.  Trinity  Church,  14  M.  R.  472; 
3  S.  4  /  <>high  Co.  v.  N.  J.  Co.  26  Atl.  B 

llnrhin   r.  Harhiu.   /.I  I'd.  Anderson  v.  Hap- 

!4  III.  4S6;  Page  v.  Fowler,  28  Cal.  605;  National 
Co.  v.  Weston,  15  Atl.  569;  Giffln  v.  Pipe  Lines,  S3 
Atl.  578. 


PENAL  PROVISIONS. 


False  Weights  and  Assays. 

There  are  in  all  the  mining  States  penal  Stat- 
utes more  or  less  alike  in  wording  and  intent  pre- 
scribing punishment  for  such  self-evident  offenses 
as  the  using  of  fraudulent  gold  dust  scales  (§1351) 
or  false  ore-buyers'  weights  and  scales  or  the  certify- 


342  PENAL  PROVISIONS. 

ing  to   false   assays   or   making   false   return   of   ore 
weight  or  value.— R.   8.   Colo.    §    'i.'.'jO. 

Debased  Gold  Dust. 

Sections  /TON,  a  make  it  penal  to  knowingly 
have  or  pass  debased  gold  dust.  In  Peo.  v.  Page, 
1  Ida.  102.  the  defendant  was  convicted  on  in- 
dictment for  having  in  possession  instruments  for 
manufacturing  bogus  gold  dust.  In  Peo.  v.  Sloper. 
1  Ida.  158  and  Peo.  v.  Page.  Id.  189,  the  offense  of  ut- . 
tering  such  material  is  discussed. 

Salting  Ore. 

That  every  person  who  shall  mingle  or  cause  to  be 
mingled  with  any  sample  of  gold  or  silver-bearing  ore,  any 
valuable  metal  or  substance  whatever  tli.it  will  increase  or 
In  any  way  change  the  value  of  said  ore.  with  the  intent  to 
deceive,  cheat  or  defraud  any  pi  -rson  or  persons,  shall  on 
conviction  thereof,  be  punished  b\  ;i  line  of  not  less  than 
five  hundred  nor  more  than  one  thousand  dollars,  or  by 
confinement  in  the  penitentiary  Tor  ;i  t»-rm  not  less  than 
one  nor  more  that  fourteen  years,  or  by  both  such  line  and 
imprisonment.  /,'.  N.  OolO.  §  1863. 

Ore  Stealing  From  the  Mine. 

If  any  person  shall  break,  sever  or  leparatf  with 
intent  to  steal,  ore  or  mineral  from  any  mine,  lode,  ledge 
or  deposit  in  this  State,  or  shall  take,  remove  or  conceal 
ore  or  mineral  from  any  mine,  lode,  ledge,  deposit  or  dump 
with  intent  to  defraud  the  owner  or  owners,  lessee  01 
licensee,  or  any  tenant  in  possession  of  any  mine.  lode, 
ledge,  deposit  or  dump,  or  any  person  in  possession  and 
claiming  under  color  of  title  any  mine,  lode,  led^c.  or  dump. 
such  person  shall  be  deemed  guilty  of  grand  larceny,  and 
upon  conviction  shall  be  punished  as  for  grand  larceny. 
— R.  8.  Colo.  §  1680. 

The  above  section  amends  the  act  of  1903  which 
was  limited  to  ore  of  the  value  of  $20. 

Trespass  Not  Larceny. 

Except  as  modified  by  such  statutes  as  said  sec- 
tion 1680,  the  taking  of  ore  by  severing  it  from  the 
realty  accompanied  by  its  immediate  asportation, 
can  in  no  case  be  considered  larceny. — Peo.  v.  Wil- 
liams. 4  M.  R.  185;  State  v.  Berryman.  1<1.  Wit:  Mate 
v.  Burt,  Id.  190. 


PENAL  PROVISIONS.  343 

This  distinction  is  in  some  of  the  cases  referred 
to  as  unsubstantial  and  technical,  although  its  force 
as  decided  law  is  not  questioned.  On  the  contrary, 
it  is  a  distinction  necessary  to  check  the  constant 
tendency  to  seek  a  criminal  remedy  where  the  civil 
remedy  is  ample-.  Kxcepting  the  instance  of  what  is 
known  as  "high  grading"  the  severance  is  wholly 
\\ithout  felonious  intent. 

The  malicious  removal  of  location  marks  is  made 
a  misdemeanor  by  the  terms  of  section  />/'/'. 

I'nder  a  statute  on  this  subject  it  was  held  that 
there  must  be  proof  of  a  lawful  stake  on  a  valid  min- 
ing claim — and  that  where  the  only  proof  of  discov- 
ery was  that  the  stake  was  posted  after  finding 
quart/  and  vein  matter,"  there  was  no  proof  of  a 
valid  location  stake,  such  as  the  law  was  intended 
to  protect.— Territory  v.  J/<  AV,/.  /.''  P.  .IH'». 

Malicious  Mischief. 

By  R.  S.  Colo  1900.  it  is  made  a  misdemeanor 
to  unlawfully  destroy  any  shaft-guard"  or  remove  the 
timbers  from  any  shaft,  incline  or  tunnel. 

Cutting  Timber  or  Removing  Buildings. 

Besides  the  section  as  to  malicious  mischief  there 
are  two  sections  harsh  and  cruel,  in  defining  mere 
trespass  into  crime,  by  leaving  out  entirely  the  ele 
ment  of  malice  or  other  criminal  intent,  making  the 
cutting  of  timber  or  removing  of  buildings  a  misde- 
meanor. §§  .J222,  4223.  The  strictest  construction 
against  it  has  been  heretofore  given  to  a  statute  of 
like  character.— Bradley  v.  Peo.  8  Colo.,  599. 

Jumping  Claims  by  Stealth  or  Violence. 

R.  S.  Coin.  ',>>».  passed  "in  1874,  prohibits  acts  of 
this  character.  The  Act  consists  of  a  single  para- 
graph of  interminable  length.  It  makes  the  associa- 
tion of  two  or  more  persons  for  the  purpose  of  taking 
possession  of  a  claim  in  possession  of  another,  by 
stealth  or  violence,  a  misdemeanor.  The  section  is 
intended  to  prevent  what  has  commonly  been  termed 
"jumping,"  which  word  is  met  with  in  some  of  the 


344  EJECTMENT. 

old  statutes  as  well  as  in  the  district  rules,  and  oc- 
casionally in  law  reports. — Arnold  v.  Baker,  7  M.  R. 
Ill;  6  Neb.  134;  Murphy  v.  CoW,  5  M.  R.  330;  5 
Colo.  281.  As  a  penal  statute  it  is  awkwardly  framed, 
and  the  substantial  remedy  is  by  a  section  passed  at 
the  same  time,  by  which  possession  is  restored  to 
the  party  forcibly  dispossessed — See  p.  369. 

Coal  Mines. 

There  are  also  Acts.  R.  S.  Colo.  638-660,  regulating 
coal  mines,  specially  providing  for  inspection  of  same 
and  guarding  against  spontaneous  combustion,  gob- 
fires,  open  pits,  fire  damp  and  other  dangers. 

The  Federal  Acts  of  1891  and  1902  (26  St.  L.  1104; 
32  St.  L.  631)  provide  for  the  inspection  and  regula- 
tion of  coal  mines  in  the  Territories  and  prohibit  em- 
ployment of  children  in  the  same. 

Oil  Wells  are  required  to  keep  their  products  from 
emptying  into  any  natural  water  course. — R.  S.  Colo. 

1818. 

Ventilation — Children. 

The  Constitution,  Art.  16,  §  2,  requires  the  pas- 
sage of  laws  securing  safety  escapes  and  ventilation 
in  mines. 

The  acts  on  these  subjects  are  cited  under  INSPEC- 
TOR, p.  376. 

The  employment  of  children  under  fourteen 
years  of  age  is  forbidden  by  R.  S.  §  547. 

The  eight  hour  law  applies  to  underground 
miners,  to  smelters  and  other  ore-treating  processes. 


EJECTMENT. 

Pleadings. 

Under   Code   practice  the  names  of  the   various 
actions  are  abolished,  but  the  distinctions  being  in- 


KJIT^TMENT.  345 

herent,  the  term  Ejectment  has  its  specific  applica- 
tion the  same  as  formerly. 

Section  286  Colo.  Code  requires  a  concise  state- 
ment in  the  complaint  of  the  nature  of  the  title  when 
possessory. 

Supporting  Adverse  Claims. 

It  is  the  proper  action  to  bring,  and  the  one  in 
fact  generally  brought  in  support  of  an  adverse  claim. 
—Becker  v..  Pugh,  15  M.  R.  304;  9  Colo.  589;  Burke  v. 
Mrlh,nal'l.  M  P.  351.  In  such  suit  it  is  immaterial 
which  party  is  in  actual  .possession  at  the  time  when 
the  action  was  brought. — Id.  And  no  proof  of  an 
ouster  is  required. — Golden  Fleece  Co.  v.  Cable  Co. 
1  M.  B,  /.'".-  12  Nev.  312.  Or  each  party  may  be  in 
possession  of  a  part  of  the  contested  premises. — Rose 
v.  Richmond  Co'.  21  P.  1105.  Notifying  defendant 
not  to  work  is  an  ouster. — Bramlett  v.  Flick,  57  P. 
N;.</. 

The  object  of  the  suit  is  to  determine  the  right 
of  possession,  and  the  result  is  to  decide  which  party 
is  entitled  to  a  patent  from  the  United  States.  The 
Government  being  thus  an  interested  party,  each 
must  prove  its  own  case  affirmatively,  and  to 
MI  her  recover  or  successfully  defend  must  show  a 
valid  location. — Bay  State  Co.  v.  Brown,  21  F.  167; 
Jackson  v.  Roby,  109  U.  8.  MO;  McOinnis  v.  Egbert, 
8  Colo.  41;  15  M.  R.  329;  Rosenthal  v.  Ives,  15 
M.  R.  824;  12  P.  904.  Neither  party  is  en- 
titled to  a  verdict  upon  mere  proof  of  prior  posses- 
sion alone — as  is  the  rule  in  a  contest  where  individ- 
uals only  are  interested. — Sears  v.  Taylor,  5  M.  R. 
318;  4  Colo.  38.  But  possession  alone  is  good  against 
an  intruder,  especially  one- who  enters  by  violence. — 
Haws  v.  Victoria  Co.  160  U.  8.  303.  Possession  may  be- 
come incidentally  a  material  issue  in  the  case. — See 
ADVERSE  CLAIM. 

Averment  of  Suit  Brought  in  Time. 

In  a  complaint  carefully  and  technically  drawn 
there  will  be  an  averment  that  the  adverse  claim  was 


346  EJECTMENT. 

filed  within  the  period  of  publication  and  the  suit 
brought  within  the  30  days,  but  both  the  right  of  the 
thing  and  the  weight  of  authority  is  that  they  are 
not  essential  averments.  If,  in  fact,  the  adverse 
claim  was  not  filed  or  the  suit  not  brought  within 
these  respective  limited  periods  it  is  a  matter  of 
defense  to  be  raised  by  the  answer. — Providence  Co. 
v.  Marks.  (JO  P.  938;  Marshall  Co.  v.  Kirtley.  l> 
Colo.  J/17;  Altoona  Co.  v.  Integral  Co.  4~>  P.  10'^: 
Pennsylvania  Co.  v.  Bales,  in  P.  444;  Ham  v.  Mattes, 
.x.f  P.  l«7. 

No  Second  Suit. 

If  suit  be  dismissed  a  second  suit  cannot  be 
brought  after  the  expiration  of  the  thirty  days. — 
Steves  v.  Carson,  16  M.  R.  ].>;  \&  /  821;  and  if 
not  filed  in  time  the  suit  cannot  be  supported  as  an 
ordinary  ejectment. — Hunt  r.  Eureka  Gulch  Co.  // 
Colo.  451. 

Second  Trial. 

The  right,  as  of  course,  to  a  second  trial  in  eject- 
ment in  Colorado  is  abolished  since  1899. 

Possession  Without  Location — Location  Without 

Discovery. 

The  Congressional  Act,  §  2320,  says  that  "no 
location  of  a  mining  claim  shall  be  made  until  the 
discovery  of  the  vein."  And  in 'sequence  to  this  it 
has  been  ruled  that  if  there  is  no  valid  location  there 
can  be  no  rightful  possession. — Belk  v.  Meagher.  I 
M.  R.  510;  104  U.  S.  219;  Sweet  v.  Webber,  1  Colo. 
450.  A  prospector,  at  least  after  he  has  discovered 
mineral,  has  the  right  to  be  undisturbed  in  whatever 
shaft  or  other  work  he  is  prosecuting. — Faxon  v. 
Barnard,  2  McCr.  44;  9  M.  R.  515.  But  only  by  com- 
pliance with  the  Statute  (by  a  valid  location)  can 
he  prevent  other  prospectors  from  entering  upon  any 
ground  except  that  in  his  actual  occupation. — Becker 
v.  Pugh,  15  M.  R.  304;  9  Colo.  5S9.  The  posting  of 
notice  without  discovery  or  indications  of  mineral 


KJhX'TMKNT.  347 

cannor  warn  otT  other  prospectors. — 1\ rha nl t  v.  Boaro, 
//.;  U.  flf,  557;  l~>  M.  /»'.  //7.  He  may  protect  him- 
self in  his  pedis  possessio  (the  ground  in  actual  as 
distinguished  from  constructive  possession),  while 
in  the  search  for,  before  he  has  discovered,  mineral. 
And  as  auainst  another  miner,  where  neither  has 
discovered  a  vein,  he  has  the  better  right. — Field  v. 

The  question  which  these  citations  lead  up  to  is 
i his:  Can  a  prospector,  before  discovering  mineral, 
stake  off  a  full  claim  and  keep  off  all  other  pros- 
pectors while  he  is  engaged  in  hunting  for  mineral? 
In  other  words,  can  he  set  up  his  stakes  first  and 
make  his  discovery  afterward  on  the  supposition 
that  when  he  does  strike  the  vein  his  stakes  al- 
ready set  will  be -found  to  cover  the  legal  width  on 
each  side?  Can  he,  in  spite  of  the  law  which  says 
he  can  not,  make  a  valid  location  before  discovery; 
or,  which  is  the  same  thing,  have  all  the  practical 
benefits  of  a  1«  cation,  before  such  discovery?  The 
cases  go  to  the  length  of  protecting  his  actual  work- 
ings— and  this  would  prevent  encroachment  so  close 
as  to  hinder  work  or  threaten  a  breach  of  the  peace. 
The  Hn<ii»  <  ase  seems  to  intimate  that  he  may  pro- 
tect himself  when  at  work  on  float,  or  after  sub- 
stantial assurance  of  the  proximity  of  the  lode.  In 
the  Field  case  the  point  is  approached  and  almost 
decided,  that  he  may  hold  by  location  without  dis- 
covery. The  burden  of  the  other  cases  and  the  text 
of  the  law  is  against  the  proposition — that  staking 
a  claim  before  discovery  excludes  other  prospectors. 
All  have  the  same  right  to  seek  till  one  has  found; 
no  one  has  a  right  to  fence  out  others  from  the 
right  of  seeking  what  he  himself  is  only  seeking. 
See  pp.  27,  S3. 

The  party  who  is  the  first  to  comply  with  the 
law  though  he  may  not  be  the  first  discoverer  holds 
the  first  title.— Sisson  v.  Sommers.  J9  M.  R.  *'>',',:  ~>~> 
P.  829;  Lockhart  v.  Johnxi.,1.  181  U.  8.  527;  Cop- 
per Globe  Co.  v.  Allman.  21  M.  If.  996;  <'>',  P.  1019; 
Gregory  v.  PersJibaker.  13  M.  R.  6(fc;  7.;  Cal.  109. 


348  EJECTMENT. 

Prior  possession  is  better  title  than  an  invalid 
location. — Connolly  v.  Hughes,  11  P.  681. 

Possession — How  Proved. 

A  person  who  has  purchased  a  mining  claim 
which  had  been  properly  located  and  marked  out 
upon  the  ground,  and  who  is  personally  or  by  his 
agents  upon  the  claim,  working  and  developing  it, 
and  keeping  up  the  boundary  stakes  and  marks 
thereof,  is  not  merely  in  the  constructive  possession 
of  such  claim  by  virtue  of  mining  laws,  but  is  in  the 
actual  possession  of  the  whole  claim:  such  posses- 
sion is  a  possessio  pedis,  extending  to  the  boundary 
lines  of  the  claim. — North  Noonday  Co.  v.  Orient  Co. 
1  F.  522;  9  M.  R.  531.  Digging  a  shaft,  building  a 
cabin,  etc.,  held  proof  of  possession. — Koons  v.  Bry- 
son,  69  F.  297. 

Actual  occupation  of  a  part  of  the  claim  under 
papers  calling  for  the  entire  tract  by  metes  and 
bounds,  or  by  the  name  of  the  claim,  gives  construct- 
ive possession,  of  the  entire  tract. — Harris  v.  Equa- 
tor Co.  12  M.  R.  US;  8  F.  863;  Attwood  v.  Fricot, 
17  Cal.  38;  2  M.  R.  305;  Hess  r.  Winder,  /..'  .17.  if. 
217;  30  Cal.  349. 

Possession  is  a  question  of  law. — Jordan  v.  Duke, 
36  P.  896.  A  witness  must  testify  to  facts,  and  it 
is  for  the  Court  to  say  whether  these  facts  aniouni 
to  possession. — Thistle  v.  Frosfburg  Co.  10  Md.  I  W. 
But  the  uniform  holding  of  the  United  States  Court, 
at  Denver,  has  been  that  the  question  as  to  posses- 
sion may  be  asked  directly,  leaving  it  to  the  cross- 
examination  to  bring  out  whether  the  facts  stated 
amount  to  possession,  and  this  is  the  more  sensible 
practice. 

The  possession  of  the  surface  enclosing  the  apex 
is  the  possession  of  the  vein  wherever  the  dip  may 
carry  it. — Montana  Co.  v.  St.  Louis  Co.  102  F.  .f.,7. 
A  prospector  drilling  for  oil  is  in  possession  and 
ejectment  is  the  remedy  to  test  his  right  of  posses- 
sion.— Cosmos  Co.  v.  Gray  Eagle  Co.  112  F.  4- 


EJECTMENT.  349 

Where  a  Statute  speaks  of  parties  in  possession, 
it  means  that  constructive  possession  which  the  law 
attaches  to  the  title.— Heinze  v.  Butte  Co.  126  F.  1. 
A  mine  claimant  is  in  possession  to  his  boundaries, 
although  he  may  not  know  where  his  boundaries  are. 
—Molina  r.  Luce  (Ariz.),  76  P.  602.  A  party  may 
l>e  in  lf£ul  possession,  though  not  personally  on  the 
land  at  the  time  of  a  stranger's  entry. — Davis  v. 
Dennis  (Wash.),  85  P.  1079. 

Surreptitious  running  of  a  drift  under  the  lines 
of  the  claim  of  another  does  not  constitute  posses- 
sion of  such  claim. — Badger  Co.  v.  Stockton  Co.  139 
F.  838. 

Sinking  an  old  shaft  a  few  feet  deeper  and  no 
other  work  done  during  a  period  of  seven  years  does 
not  amount  to  possession. — Costello  v.  Muheim 

:.),  84  P.  906. 

Living  in  a  tent  on  the  claim  and  working  on  the 
same  constitutes  actual  possession  of  mining  ground. 
— Lange  v.  Robinson.  / 

An  Equitable  Defense  may  be  set  up  in  eject- 
in  mt. — South  End  Co.  v.  Tinney,  35  P.  89.  Such 
defense  must  be  specially  pleaded. — Brady  v.  Husby, 
33  P.  801. 

Title  in  Third  Party. 

The  rule  that  plaintiff  must  recover  on  the 
st  ivngth  of  his  own  title  does  not  prevail  in  an  ac- 
tion between  possessory  claimants. — Strepey  v.  Stark, 
7  Colo.  622;  17  M.  R.  28;  Murray  Co.  v.  Havenor,  66 
P.  762.  Otherwise,  as  to  parties  claiming  under 
patent,  or  in  ordinary  contests  as  to  legal  title. — 
Dyke  v.  Whyte,  17  Colo.  296.  A  patentee  has  no  right 
to  disturb  any  person  in  possession  of  ground  under, 
but  excluded  from,  his  patent. — Reynolds  v.  Iron  Sil- 
ver Co.  15  M.  R.  591;  116  U.  S.  687. 

The  Location  Certificate  as  Evidence — Presump- 
tion of  location. 
Where  a  plaintiff  has  been  in  actual  possession 

of  his  claim   for   the  full   period   of   the   Statute   of 


350  EJECTMENT. 

Limitations  a  presumption  may  be  indulged  as 
against  a  wrongdoer  at  least,  that  his  location  was 
regularly  made,  without  putting  him  to  proof  of  its 
successive  steps. — Harris  v.  Equator  Co.  supra: 
Cited  and  approved  in  Vogel  v.  Warsing.  Lff6  F.  .'>/.''. 
When  the  location  has  been  made  for  a  considerable 
time  and  is  held  by  bona  fide  purchasers  the  location 
certificate  is  prima  facie  evidence  of  discovery  and 
location.— Cheesman  v.  Hart,  16  M.  R.  &5;  / .'  /•'. 
98;  Yreka  Co.  v.  Knight,  65  P.  1092.  In  Cheesman 
v.  Shreeve,  40  F.  791;  n  M.  If.  nw,  it  was  held  pre- 
sumptive evidence  of  discovery.  It  is  evidence  of 
the  performance  of  all  things  which  the  Statute  re- 
quires it  to  recite. — Strepey  v.  Stark,  7  Colo.  619. 

Exact  evidence  of  all  details  is  not  to  be  ex- 
pected in  prcof  of  discovery  and  location  made  many 
years  before  the  time  af  trial. — Becker  v.  Piifjh.  /: 
Colo.  W;  YrcL'd  00.  r.  A' ///<////.  .'/  M.  If.  \J8;  ff£  /'. 
109L 

But  in  the  absence  of  a  Statute  to  such  effect 
and  barring  the  above  exceptional  instances  it  does 
not  prove  discovery  or  the  several  acts  of  location. — 
Niles  v.  Kennan,  62  P.  360;  Mutchmor  v.  McCarhj. 
87  P.  85. 

By  Statute  in  Nevada  and  Montana  the  location 
certificate  is  prim  a  fade  evidence  of  location. 

The  defendant  may  show  that  plaintiff's  discov- 
ery was  upon  land  not  subject  to  location  and  the 
claim  therefore  invalid. — Oirard  v.  Carson,  '/'/  P.  508. 
See  citations,  p.  ,f7. 

Ejectment  Lies  to  Recover  Ditch  and  water  rights. 
— Integral  Co.  v.  Altoona  Co.  15  F.  ,r,H. 

Non-Joinder  of  Co-Tenant. 

It  is  no  defense  that  all  of  plaintiff's  co-owners 
are  not  made  parties  to  the  suit. — Weese  v.  Barker, 
7  Colo.  17S;  Erhardt  v.  Boaro,  15  M.  R.  Jf73;  113  U. 
S.  527. 


FORCTHI.i:   ENTRY,  351 

Allowance  for  Improvement. 

A  defendant  holding  by  l(,nn  fide  claim  of  title 
is  by  Statute  in  instances  to  be  allowed  for  improve- 
ments. Hut  mining  is  not  necessarily  an  improve- 

lllrllt.        lidrnn     r.     'ilinrntnn.     ~>l     r.     I't.l. 


FORCIBLE  ENTRY. 


The  acts  concerning  forcible  entry  and  unlaw- 
ful detainer  apply  to  possessory  as  well  as  other 
claims;  but  those  acts  are  so  involved,  and  so  ab- 
rupt and  cruel  in  their  attempt  to  substitute  haste 
for  deliberation,  that  they  result  in  driving  to  ap- 
prals  ami  in  the  end  to  more  lengthy  and  costly 
litigation  than  where  ejectment  is  resorted  to  in  the 
first  instance. 

Like  Acts  in  other  States — the  repeated  at- 
tempts by  summary  process  to  deprive  a  defendant 
of  his  day  in  court  under  pretense  of  doing  speedy 
justice — are  open  to  the  same  comment.  Except  as 
against  a  teuant  holding  over  in  defiance  of  bis 
lease  or  refusing  the  payment  of  royalty  or  rent, 
this  action  will  always  be  found  a  dangerous  substi- 
tute for  the  ordinary  action  of  ejectment.  Espe- 
cially is  this  the  case  where  actions  are  commenced 
before  Justices  of  the  Peace,  before  whom  proceed- 
ings are  so  vexatious,  oppressive,  and  attended  with 
so  much  heavier  costs  than  such  as  accrue  in  Courts 
of  Record,  that  it  is  rarely  advisable  to  seek  the 
ivmedy  for  any  wrong,  in  any  form  of  action,  be- 
fore 


MEASURE  OF  DAMAGES. 

Trespass  for  Ore  Taken. 

The  true  measure  of  damages  depends  upon  cir- 
cumstances of  aggravation,  ranging  from  the  profits 


352  MEASURE  OF  DAMAGES. 

of  working  to  the  gross  value  of  the  ore  after  break- 
ing from  the  stope. — Empire  Co.  v.  Bonanza  Co.  61 
Cal.  406;  In  re  United  Merthyr  Co.  10  M.  R.  153;  L. 
R.  15  Eq.  46;  Ege  v.  Kille,  84  Pa.  333;  10  M.  R.  lit'. 

The  cost  of  mining  should  be  deducted  from  the 
value  of  the  ore  in  all  cases  where  neither  fraud  nor 
culpable  negligence  constitute  any  element  of  the 
case. — Waters  v.  Stevenson,  10  M.  R.  2JtO;  29  Am. 
Rep.  293;  Durant  Co.  v.  Percy  Co.  93  F.  166;  Hall 
v.  Abraham,  75  P.  882;  Lewis  v.  Virginia  Co.  48  8. 
E.  280.  When  coal  was  taken  under  bona  fide  claim 
of  right  a  reasonable  royalty  should  be  the  measure 
of  damages. — Sandy  R.  Co.  v.  White  House  Co.  101 
8.  W.  319. 

Under  ordinary  circumstances  the  just  rule  of 
compensation  is  the  value  of  the  rock,  coal,  ore  or  oil 
before  the  mining  or  quarrying  began — the  value  in 
place. — Dougherty  v.  Chesnutt,  5  8.  W.  444,'  Coal 
Creek  Co.  v.  Moses,  15  M.  R..544;  15  Lea  (Term.), 
300;  Ege  v.  Kille,  supra;  Dyke  v.  Nat.  Tr.  Co.  49  N. 
Y.  8.  180.  And  where  the  ore  has  been  taken  by 
defendant's  lessee,  the  royalty  may  be  taken  as  the 
net  profit.— Colo.  Cent.  Co.  v.  Turck,  10  F.  294;  New 
Dunderberg  Co.  v.  Old,  .97  F.  150;  Moragne  v.  Doe, 
39  So.  161. 

In  wilful  trespass,  or  where  the  defendant  has 
mingled  the  ore  or  taken  any  steps  to  prevent  ulti- 
mate proof  of  its  value,  these  acts  are  to  be  taken 
against  the  defendant. — Cheesman  v.  Shreeve,  40  F. 
788;  even  so  far  as  to  throw  the  burden  of  proving 
the  value  upon  the  defendant. — Little  Pgh.  Co.*v. 
Little  Chief  Co.  15  M.  R.  655;  11  Colo.  228;  St.  Clair 
v.  Cash  (7o.  47  P.  466;  and  in  cases  of  fraud  a  co- 
tenant  may  even  be  denied  plaintiff's  share  of  legiti- 
mate expenses. — Foster  v.  Weaver,  15  M.  R.  551;  118 
Pa.  42.  A  wrongdoer  is  not  entitled  to  cost  of  mining. 
— Benson  Co.  v.  Alta  Co.  145  U.  8.  428;  Sunny  side 
Co.  v.  Reitz,  39  N.  E.  541. 

A  lessee  holding  over  under  claim  of  right  is 
not  a  wilful  trespasser  and  is  to  be  allowed  the  cost 
of  mining. — Montrozona  Co.  v.  Thatcher,  15  P.  •)/'•>. 


MEASURE  OF  DAMAG  I  :s  353 

Negligence  to  ascertain  boundaries  does  not  make 
necessarily  a  wilful  trespasser  but  a  deliberate  in- 
tention to  remain  ignorant  of  boundaries  does  so. — 
tion  Co.  v.  Fortune  Co.  /."'  /•'.  tt68. 

Plaintiff  may  prove  assays  of  ore  left  standing 
and  computations  of  what  was  taken  from  the  stopes 
— but  an  averaging  estimate  of  how  much  each  miner 
might  have  broken  is  too  remote. — Golden  R.  Co.  v. 

In  Omaha  Co.  r.  Tabor,  in  M.  /»•.  />}.  /.?  Colo.  41, 
the  Court  adopted  the  value  of  the  'ore  when  it  be- 
»  a  me  a  chattel  by  severance  from  the  realty.  That 
is  the  rule  where  there  was  no  bona  fide  claim  of 
liuht.  and  under  th-  circumstances  of  that  case  was 
an  extreme  ruling  and  against  the  almost  unbroken 
weight  of  authority 

Confusion. 

Mixture  of  ore  got  by  trespass  with  ore  rUrht 
fully  mined  does  not  necessarily  bring  the  caseVithin 
the  rule  as  to  confusion  of  goods. — Maloney  v.  Kin>i. 

'.   ',. 

Natural  Gas  Company  held  to  extreme  measure 
of  damages  where  it  had  fraudulently  mingled 
lessors'  gas  without  keeping  any  account  of  it. — 

/e  v.  Marshnll  Co.  SI  All.  t8S;  Great  S.  Co.  v. 
Logan  Co.  /J-i  /•'.  ///. 

Where  the  Mine  is  Under  Lease  and  ore  is  taken 
by  trespass,  the  lessee  can  recover  in*  trover  or  tres- 
pass.— Hartford  Co.  v.  Cambria  Co.  53  N.  W.  4;  At- 
oll v.  Stevens,  10  M.  If.  </7 :  /  Taunt,  ix.t.  And 
the  lessor  nny  recover  to  the  extent  of  his  royalty. — 
kbridge  Co.  v.  Cone  Works,  6  M.  R.  811;  102 
Mass.  80.  Where  the  lessor  treats  disputed  ground 
as  his  own  he  is  liable  to  the  owner  for  coal  taken 
by  his  lessee. — Dumlas  v.  Muhlenberg,  14  M.  R.  431 ; 
.;.'  r<i.  .:.">!.  The  same  as  to  an  oil  lease  to  the  full 
value  of  the  leasehold  interest. — Duflield  v.  Rosenz- 
weig,  23  Atl.  4. 

12 


354  MEASURE  OF  DAMAGES. 

No  Deduction  for  Developments. 

By  Section  291  of  the  Code,  in  suits  for  mesne 
profits  after  recovery  in  ejectment  (which  does  not 
necessarily  include  every  trespass  suit)  "offsets"  are 
not  to  be  allowed  for  "timbering,  cribbing,  improve- 
ments or  developments." 

Special  Injury  to  the  Mine  cannot,  in  trespass,  be 
proved  as  damages,  unless  specially  declared  for. — 
Patchen  v.  Keeley,  1't  P.  3'j7. 

Mesne  Profits. 

At  common  law  a  plaintiff  out  of  possession  could 
not  recover  for  the  ore  taken  until  he  had  recovered 
possession  by  ejectment. — Hugunin  v.  Alcl'iinniff.  1 '/ 
M.  R.  .'/tf.f;  .>  Colo.  381. 

This  is  changed  by  statute  in  Colorado.  R.  S. 
Sec.  4219.  The  Plaintiff  may  recover  the  land  and 
damages  in  a  single  action  or  by  separate  suits. — 
Code,  §  291.  The  case  of  Ghost  v.  Shuman,  Jt  Colo. 
Ap.  88,  which  holds  that  they  must  be  recovered  in 
the  original  action,  entirely  overlooks  this  section. 

In  Miscellaneous  Cases. 

For  the  measure  of  damages  on  refusal  to  ac- 
cept deed,  see  Gilpin  M.  Co.  v.  Drake,  8  Colo. 
On  breach  of  contract  to  lease. — Chambers  v.  Brown, 
>  .V.  W.  561.  In  cases  of  negligence. — Moody  v. 
McDonald,  Jt  Cal.  291 ;  2  M.  R.  181'.  On  tunnel  con- 
tract.— Monroe  v.  Northern  P.  Co.  5  Or.  509;  2  M.  If. 
n~>.!.  Against  lessor  for  mining  the  ground  leased. 
—Chamberlain  v.  Collinson,  9  M.  R.  37;  .',:>  la.  /.'.''. 
Against  lessee  for  breach  of  covenants  to  mine. — 
Cleopatra  Co.  v.  Dickinson,  68  P.  156;  Colo.  Fuel 
Co.  v.  Pryor,  20  Colo.  5.'/0;  Macon  v.  Trowbridge,  87 
P.  1147. 

Measure  of  damages  on  fraudulent  sale  of  mine 
or  stock  is  the  difference  between  the  value  received 
and  the  value  parted  with. — Smith  v.  Bolles,  132  U. 
8.  125 ;  16  M.  R.  159 ;  Warner  v.  Benjamin,  62  X.  W. 
179;  ^t  ration's  Ind.  v.  Dines,  l.i't  /•'.  ',.',9. 


NEGLIGENCE.    ACCIDENTS.  355 

Conversion  of  stock  of  no  fixed  market  value. — 
Mui/nahan  v.  Prentiss.  31  P.  .''/. 

On  sale  of  coal. — Osgood  v.  Bander.  39  N.  W.  887. 
For  stoppage  of  work  on  contract  to  sink,  before 
shaft  complete. — Mooney  v.  York  Co.  46  N.  W.  316. 

Heavy  verdict  sustained  for  breach  of  contract 
to  drive  drainage  tunnel. — Occidental  M.  Co.  v.  Corn- 
stock  T.  Co.  /.'•>  /•'.  !',',. 


NEGLIGENCE.     ACCIDENTS. 


The  same  rule  governs  the  liabilities  of  owners, 
lessees  and  contractors  in  case  of  accident  to  em- 
ployes, as  controls  jn  other  cases  where  the  relation 
of  master  and  servant  exists  and  negligence  is  the 
foundation  of  the  action.  —  "Personal  Injuries  in 
Mines"  by  E.  J.  "\Vimi:  i  1905)  t  passim;  Quincy  Co.  v. 
Hood,  n  M.  1!.  148;  77  ///.  89;  xtxthlendorf  v.  Rosen- 
thai.  in  M.  /;.  >;:>;:  .\n 


The  Degree  of  Care  required  of  the  master  is  fully 
stated  in  Southwest  Co.  v.  Smilli.  85  \'<i.  306;  n  Am. 
St.  /»'.  •  <.''.  The  miner  has  no  recovery  for  the  ordi- 
nary and  unavoidable  risks  of  the  business.  —  Chero- 
kee Co.  v.  Brittnu.  '{.',  p.  loi. 

Instances  of  Responsibility. 

He  is  liable  for  failure  to  timber  dangerous 
ground.  —  Trihay  v.  Brooklyn  Co.  15  M.  R.  53-1:  / 
Utah  J/68;  Sampson  Co.  v.  Schaad,  15  Colo.  HH.  Or 
for  failure  to  observe  his  own  code  signals.  —  Silver 
Cord  Co.  v.  McDonald,  l't  Colo.  191;  16  M.  R.  111. 
Or  defective  rope  or  hoisting  gear.  —  Xeiv  York  Co. 
v.  Rogers.  11  Colo.  6;  Myers  v.  Hudson  Co.  150 
Mass  1>~>:  Donnelly  v.  Booth  Co.  31  Atl.  .S7.'/.  Or 
for  scales,  the  fall  of  which  should  have  been  fore- 
seen.— Buckley  v.  Port  Henry  Co.  2  N.  Y.  S.  1.1.1  : 
U.  P.  Ry.  v.  Jarvi.  53  F.  6%7;  Wilson  v.  Alpine  Co. 
81  S.  U  578;  Mmtnn  r.  La  Follette  Co.  101  S.  W. 


356  NEGLIGENCE.    ACCIDENTS. 

778.  For  a  preventable  cave. — James  v.  Emmett 
Go.  21  N.  W.  361;  Pantzar  v.  Tilly  Co.  99  N.  Y.  368. 
For  rotten  ladder. — Reese  v.  Morgan  Co.  5%  P.  759. 
For  sending  men  into  a  blind  upraise  known  to  be 
filled  with  bad  air. — Portland  Co.  v.  Flaherty,  /// 
F.  312. 

The  mine  owner  must  look  to  the  proper  support 
of  his  gangways  and  to  the  timbering  and  to  the  ma- 
chinery above. — Quincy  Co.  v.  Hood,  supra;  Strahlen- 
dorf  v.  Rosenthal,  supra;  Ardesco  Co.  v.  Gilson,  63 
Pa.  146;  10  M.  R.  669;  Soyer  v.  Great  Falls  Co. 
P.  838.  Failure  to  examine  gangways. — Ashland  Co. 
v.  Wallace,  42  8.  W.  1',',. 

The  miner  has  a  right  to  assume  that  the  roof 
is  safe. — Vanesse  v.  Catsourg  Co.  28  Atl.  200.  The 
same  as  to  the  machinery. — Myers  v.  Hudson  Co. 
150  Mass.  123;  15  Am.  St.  R.  176. 
'~~  He  is  responsible  when  the  accident  can  be  traced 
directly  to  his  own  fault  or  the  fault  of  his  partner. — 
Mellors  v.  Shaw,  9  M.  R.  678;  1  B.  d  8.  431.  And  gen- 
erally where  traceable  to.  the  fault  of  the  superin- 
tendent or  foreman. 

He  is  liable  for  overspeeding  the  cage. — Jos. 
Taylor  Co.  v.  Dawse,  77  N.  E.  131.  And  for  failure 
to  lag  where  lagging  was  customary  and  necessary. 
— Friel  v.  Kimberly-Montana  Co..  85  P.  734. 

It  is  the  duty  of  the  employer  to  inform  an 
inexperienced  miner  of  dangers  known  or  which 
ought  to  be  known. — Low  Moor  Iron  Co.  v.  La  Bianca, 
58  S.  E.  532;  Pocahontas  Co.  v.  Williams,  54  S.  /•:. 
868.  Defendant  held  for  allowing  green  hand  to  pick 
missed  shot. — Peters  v.  George,  154  F. 

Blasting1.     Explosions. 

It  is  the  absolute  duty  of  the  master  to  give 
warning  of  a  blast. — Hjelm  v.  Western  Or.  Co.  102 
N.  W.  384;  Bellevue  Co.  v.  Mooney,  39  Atl.  764;  19 
M.  R.  264. 

The  owner  is  liable  for  accidents  resulting  from 
experimenting  with  new  and  untried  fuse  or  explo- 
sives.— Smith  v.  Oxford  Co.  42  N.  J.  L.  467;  2  M.  R. 


NEGLIGENCK.     A<<   IDENTS.  357 

208;  Chambers  v.  Chester,  12  S.  W.  .'"<):  Helium  v. 
I  Inly  Terror  Co.  92  N.  W.  &/.  Or  for  setting  new 
employes  at  work  fitting  caps. — RiUston  v.  Mather, 
','f  /•'.  :/.;;  /.36  U.  8.  391.  Or  storing  magazines  too 
close  to  works. — Bean  v.  Pioneer  Co.  56  Am.  R.  106; 
Asbestos  Co.  v.  Durand,  20  M.  R.  452;  30  Can. 
He  must  use  all  appliances  readily  obtainable  known 
to  science  to  prevent  gas  explosions. — Western  Co. 
v.  Berberich,  9}  F.  329. 

Furnishing  a  steel  bar  to  tamp  powder  is  gross 
negligence.— Pitts  v.  Wells,  101  S.  W.  //.''.' 

Misfire. 

Consideration  of  what  is  reasonable  time  to  wait 
for  blast.— /:///•<•  ka  Co.  v.  Bass,  8  So.  216.  Full  case 
on. — Anderson  v.  Daly  Co.  50  /'.  815, 

Examination  should  be  made  and  new  shift  noti- 
fied of  missed  shot. — Lane  Co.  v.  Bauserman,  48  S.  E. 
Harris  v.  Balfour  Co.  49  N  Allen  v.  Bell, 

79  /'.  582. 

The  Lessor  is  not  liable  for  the  lessee's  negligence. 
— Smith  v.  Belslt'iir.   :,;  7*.  N.fJ      Otherwise,  when  he 

N'ts    IIKK  liiiMMv    already   out  of  condition. —  /    Thorny. 
.117. 

Under  Contractor. 

The  mine  owner  is  not  in  general  liable  for  ac- 
cidents o( -run-ins  under  a  contractor. — Lendberg  v. 
nrr>tl\cri>  >  ^.  \V .  075;  Welsh  v.  Lehigh  (' 

.\tl.   Jt8.     But   is  liable  where   contractor  known   to 
be  incompetent. — Hunt  v.  M'Namee,   7/7    7'.   293. 

Contributory  Negligence — Co-Employee. 

The  mine  owner,  as  a  general  rule,  is  not  liable 
when  the  accident  was  in  whole  or  in  part  attributa- 
ble to  the  negligence  of  the  party  injured  or  to  the 
carelessness  of  a  fellow  workman  not  occupying  a 
directing  or  superior  position  to  the  party  injured. — 
Kevern  v.  Prov.  Co.  10  Col.  S9t;  Ardesco  Co.  v.  (Mi- 
son.  63  Pa.  l.'/6;  10  M.  R.  669;  Berea  Co.  v.  Kraft, 
.11  Oh.  St.  287;  10  M.  R.  16;  Trihay  v.  Brooklyn  Co. 


358  REPLEVIN. 

/.7  M.  R.  535;  4  Utah,  468;  Colo.  Midland  Ry.  v. 
O'Brien,  16  Colo.  220.  It  is  not  necessarily  contribu- 
tory negligence  to  use  fire  for  comfort  when  dyna 
mite  is  being  thawed.  —  Bertha  Co.  v.  Martin.  22  8.  E. 
869. 

Contributory  negligence  is  no  defense  to  acci- 
dent caused  by  wilful  neglect  of  staiucory  duty.  — 
Chicago  Co.  v.  Fidelity  Co.  130  F.  951:  Fulton  Co. 
v.  Wilmington  Co.  J33  F.  193. 

Miners  working  under  different  superintendents 
are  not  fellow-servants.  —  Uren  v.  Golden  T.  Co.  21 
M.  R.  243;  64  P.  II',. 

Negligence  of  fellow  servant  is  no  defense  if 
the  master  knew  of  the  danger.  —  Hancock  v.  Keene, 
.;.'  Y  /•;.  929.  That  the  accident  was  chargeable  to  a 
co-employe  is  no  longer  a  defense  in  Colorado.  — 
R.  ,S.  g 


Remaining  in  Employ  After  Danger  Known  is 
held  in  instances  to  be  a  defense.  It  is  sometimes 
classed  as  contributory  negligence,  though  this  is  a 
mere  abuse  of  terms;  it  is  only  acquiescence  per- 
haps from  moral  necessity,  in  the  negligence  of  Ihe 
master,  perhaps  criminal  in  degree.  —  Lord  v.  Pueblo 
Co.  12  Colo.  390;  Davis  v.  Graham,  2  Colo.  App.  tlO. 
It  is  hard  for  the  reasoning  powers  of  man  to  con- 
clude that  this  does  not  amount  to  a  premium  on 
negligence. 

If  the  master  promise  to  repair,  the  workman 
may  rely  on  the  promise  and  remain.  —  highland  Boy 
Co.  v.  Pouch,  J24  F.  154. 


REPLEVIN. 


Ore  Taken  Under  Claim  of  Title. 

Where  a  party  is  in  possession  of  a  mine  under 
a  oona  fide  claim  of  title,  the  party  out  of  possession 
cannot  maintain  replevin,  or  an  action  under  the 
code  in  the  nature  of  replevin,  for  the  ore  taken 


I  N. I  r NOTION.  359 

from  the  same;  because  the  trial  of  the  right  of 
property  in  the  ore  in  such  case  would  necessarily 
involve  the  trial  of  the  title  to  real  estate.  The 
cases  sustaining  this  proposition  are  cited  ante  p. 
.;;/. 

In  a  case  of  replevin  for  ore  in  Montana  which 
brought  up  the  question  of  apex  right,  the  Court 
took  the  novel  position  that  it  involved  no  dispute 
as  to  title  and  was  only  a  matter  of  boundaries. — 
/Jn'.s-ro//  r.  Diuunnnlii.  n;  /'.  : 

Defendant  cannot  re-replevin  ore. — A/orris  v. 
EteWitt,  a  M.  if.  680;  •'  Wend.  :i. 


INJUNCTION. 


At  some  stage  of  its  progress  a  contest  over  a 
working  mine  is  almost  sure  to  suggest  this  sort  of 
relief.  It  is  true  that  i he  prayer  for  an  injunction 
is  always  to  a  certain  extent  addressed  to  the  dis- 
cretion of  the  Court,  but  the  exercise  of  this  discre- 
tion does  not  imply  the  total  absence  of  principles 
applicable  to  the  exercise  of  this  discretion. 

The  Ground  for  the  Application  of  Injunctive 
relief  is  that  the  property  may  be  preserved  pend- 
ing litigation  for  the  ultimate  use  of  the  rightful 
•  T  and  may  not  in  the  meanwhile  be  destroyed  by 
a  trespasser.  But  the  pendency  of  litigation  is  not 
^of  itself  sufficient;  the  complainant  must  i;<>  farther 
'and  show  that  his  -as.  is  based  upon  substantial 
facts,  and  that  there  is  a  probability  of  a  decision  ill 
his  favor  when  the  cause  is  tried  on  its  merits.  As 
he  asks  relief  in  advance  of  the  trial,  it  is  only  just 
that  he  make  it  appear  that  the  trial  when  had  will 
show  that  he  was  in  fact  entitled  to  this  protection; 
and  especially  so  when  a  decree  of  this  sort,  wrong- 
fully issued,  may  be  and  often  is  as  great  an  injury 
to  the  defendant  as  the  conversion  of  some  of  the  ore 
is  to  a  rightful  complainant. — Capner  v.  Flemington 
Co.  7  M.  R.  268;  .;  \  ./.  /•;//.  }/;?•;  Wavering  v.  Claver- 


360  INJUNCTION. 

ing,  J4  M.  R.  358;  2  P.  Wms.  388;  Irwin  v.  David- 
son, 1  M.  R.  231;  3  Ir.  Eg.  311. 

Parties. 

One  who  has  a  contract  to  sink  an  oil  well  en- 
tered into  before  the  suit,  is  not  bound  by  an  in- 
junction against  his  employer.  —  Dunham  v.  Seiber- 
ling,  39  N.  E.  1044-  Lessees  should  be  made  parties. 
—High  Inj.  §  690. 

A  lessee  or  licensee  may  be  entitled  to  the  pro- 
tection of  the  writ  even  against  the  owner.  —  Lytle 
v.  James,  98  Mo.  App.  337;  13  8.  W.  281;  Jack  Har- 
vard Co.  v.  Continental  Co.  80  8.  W.  /.'. 

Laches. 

Further,  to  entitle  him*  to  injunctive  relief  the 
complainant  must  not  have  been  guilty  of  unreason- 
able delay  nor  have  allowed  the  defendant  to  pro- 
ceed without  objection  to  expend  money  in  good 
faith  upon  the  property.  —  Klein  v.  Davis,  21  P.  •'>  1  1  : 
Parrott  v.  Palmer,  3  M.  &  K.  632;  Real  del  Monte 
Co.  v.  Pond  Co.  1  M.  R.  452;  23  Cal.  82;  Emma  Mine 
case,  1  M.  R.  493;  Field  v.  Beaumont,  1  8wanst.  204; 
1  M.  R.  251;  Mammoth  Co.'s  Appeal,  '»',  I><i.  188;  7 
M.  R.  460;  Patterson  v.  Hewitt,  6(>  /'  5o&; 
ers'  Co.  v.  American  Co.  (Ind.)  f;,s'  .V.  /•;. 


The  Solvency  or  Insolvency  of  the  defendant,  as 
well  as  many  other  circumstances  applicable  to  par- 
ticular cases,  may  be  taken  into  account,  but  is  not  a 
controlling  consideration  when  the  -case  is  otherwise. 
clear.  —  Lockwood  v.  Lunsford,  1  M.  R.  532;  56  Mo. 
68;  Hamilton  v.  Ely.  4  Gill  34:  Sierra  Co.  v.  Sears, 
1  M.  R.  549:  JO  Nev.  346;  Moore  v.  Ferrell,  J  Oa.  ?  ; 
1  M.  R.  281;  Invin  v.  Davidson.  .;  //-.  AVy.  .{//;  Parker 
v.  Furlong,  02  P.  WO. 

Discretion. 

The  granting  of  the  writ  is  so  largely  in  the  dis- 
cretion of  the  lower  court  that  only  in  an  extreme 
case  will  the  appellate  court,  interfere  with  the  order 
allowing  or  refusing  it.  —  Parrot  S.  Co.  v.  Heinze,  '.', 


INJUNCTION.  361 

Mont.  -JN.7:  21  M.  R.  98:  Cardelli  v.  Comstock  Co.  J/ 
M.R.699;.26Ker.   .-  /  /   l    •'/>'/  r.   \Varxinti.  l',t>  F.  : 
Bl/s/i   r.  /'/o/Mvr  Co.   /.', )   /•'. 

The  court  has  power  to  withhold  the  writ  when 
the  Plaintiff  refuses  to  do  equity  or  where  it  would 
place  one  party  in  the  power  of  the  other. — Strobel 

•  rr  Xalt   <'».  11    M.   R.  .W :   Hi',  \.    V. 

Title  in  Issue. 

In  cases  where  a  determination  of  the  legal  title 
is  necessary  to  finally  decide  the  rights  of  the  par- 
ties, the  complaint  should  be  framed  to  procure  an 
issue  of  that  sort;  or  a  previous  suit  must  be  pend- 
ing which  will  result  in  determining  the  title;  or  a 
separate  action  must  be  brought  for  such  purpose. 
In  the  United  States  Courts  where  law  and  equity 
distinctions  are  strictly  maintained,  separate  issues 
must  always  be  made.  If  no  suit  be  pending  to  try 
title  the  court  may  order  such  suit  to  be  brought  as 
a  condition  precedent  to  the  granting  of  the  writ. — U. 
S.  v.  Parrott,  McAU.  211;  7  M.  R.  335;  Grey  v.  North- 
umberland, 13  V<  Af.  R.  250;  Old  Telegraph 
•n  Co.  1  Ut.  331;  7  M.  R.  555.  And  such 
has  been  the  common  practice  in  the  Federal  Court. 
—Stevens  v.  William*.  :>  M.  i: 

A  plaintiff  in  possession  is  not  required  to  bring 
his  action  at  law. — Allen  v.  Dunlap,  33  /'.  075,  The 
writ  may  issue  to  preserve  the  property  when  the 
i.-sue  is  between  contestants  in  an  equity  case. — St. 
Louis  Co.  v.  Montana  Co.  58  F.  />.'>.  The  writ  will 
not  go  when  the  plaintiff's  title  is  not  clear  and  the 
legal  remedy  is  adequate. — tfmitli  v.  Jamison.  3  S. 
W.  211. 

Where  there  is  one  case  pending  which  brings 
up  all  questions  of  apex  rights  between  the  parties 
the  filing  of  future  actions  raising  such  issues  will 
be  enjoined. — Maloney  r.  King.  76  /' 

Preservation  of  the  Property. 

The  gist  of  the  case  and  the  foundation  of  equity 
jurisdiction  is  to  save  the  property  from  destruction 


:;<;:.>  ixjr  NOTION. 

pending  the  litigation. — Thomas  v.  Oakley,   7  M.    If. 
>.~>'i:    18    Ves.    184;    Hess    v.    Winder.    .1',   Cal    270; 
West  Point   Co.   v.  Reymert,  45  N.  Y.   703;  7  M.   If. 
.^N;  Chapman  v.  Toy  Long,  1  M.  K.   ;/.'/7  ;    'f  Ncrir. 
Hoy  v.  Altoona  Co.  136  F.    J.s.f. 

Case  Sufficient  to  Warrant  Injunction. 

To  reduce  the  matter  to  terms  it  may  be  stated 
as  a  proposition,  supported  everywhere  by  author- 
ity, that  a  temporary  injunction,  pending  suit  to  try 
title,  will  issue  as  of  right,  to  restrain  the  working 
of  a  mine,  upon  a  case  which  shows,  after  hearing 
on  bill,  answer  and  testimony: 

1.  That  the  complainant  has  the  legal  title  or  the 
elder  :ni(l  better  possessory  title;  or  at  least  such  showing 
of  title  as  would,  if  proved  as  stated  in  the  hill,  support 
the  verdict  of  a  jury  in  an  action  of  ejectment  :  and  where 
the  defense  Mii.r.i:<  >i«-<l  in  the  answer  does  not  show  a  recov- 
ery by  plaintiff  impossible  as  a  proposition  of  law;  and  the 
aflidaviis  or  deposit  ions  liein^  considered  the  weight  of  evi- 
denre  is  with  complainant  upon  the  question  of  fact;  and 
thai  the  defendant  is  in  possession  taking  out  ore  i  which 
of  itself  is  a  destruction  of  the  estate)  in  such  considerable 
quantity  MS  to  threaten  irreparable  injury. 

St.   Louis   Co.    v.    Montana    Co.   58    /'.    / .'.'' ;    Par- 
rot  Co.   v.  Heinze,  62  P.   818;  More  v.   Massim. 
Cal.  590;  7  M.  R.  455;  Magnet  Co.  v.  Page  Co.  9  Nev. 
346;  7  M.  R.  540;  Lockwood  v.  Lunsford,  56  Mo.  68; 
7  M.  R.  532;  Bettmann  v.  Harness,  18  M.  R.  500; 
S.  E.   r,  I:  rrhardt  v.  Boaro,  15  M.  If.    JJ7;   II.',   ! 
5.17 ;  Anaconda  Co.  v.  Butte  Co.  .',3  P.  9.!',. 

L*.      That    the   bill    was   br.'ti.ulit    without    needless   delay. 
and  that  the  defendant   has   not  been  allowed  or  encom 
to  expend  large  sums  of  money  upon  the  property,   which   it 
was   in  the  power  of  complainant    to   prevent. 

Ernest  v.  Vivian,  8  M.  If.  W5;  Klein  v.  Dan 
P.  oil  and  other  cases  above  cited. 

And  as  matters  more  particularly  addressed  to 
the  discretion  of  the  court  are  the  insolvency  of  de- 
fendant, threats  of  violence  and  danger  of  personal 
collisions,  the  fact  of  reckless  mining  without  re- 
gard to  the  permanent  preservation  of  the  mine,  etc. 


INJUNCTION.  363 

The  above  proi>ositions  are  made  upon  the  sun 
position  of  an  application  for  injunction  after  noti ••<>. 
appearance  and  answer. 

Insufficient  Case. 

An  injunction  should  not  issue  where  defendant 
\\ill  suffer  greater  injury  by  the  writ  than  plaintiff 
by  the  wrong.— Lloyd  r.  CatUn  Co.  77  .V.  /;. 

\Vhere  defendants  are  solvent  and  injury  slight 
or  capable  of  redress  at  law,  injunction  should  be 
denied. — King  v.  Mnllins.  ?./  /'.  /."•."»;  llarh'ii  r.  Mnn- 

*  Co.  77  /'.  /"7 ;  UK  h-s  r.  .1  :  ,\ti.  :,:,. 

1 1  is  an  abuse  of  discretion  to  enjoin  the  work 
ing  of  a  vein  on  the  mere  chance  that  it  may  apex 
outside  defendant's  ground. — Muntanu  Co.  v.  Boston 

!.">. 

The  court  will  not  enjoin  a  mere  prospect. — 
Spotts  r  ted  in  Morrison's  Colo.  Dia.  i>. 

Nor  forbid  working  for  exploration  purposes. 
—st.  Lotftil  <  "  V.  Montana  Co.  >  /'.  /.'.'/.  And  a 
writ  will  not  be  allowed  against  "working  any  vein 
having  its  apex  in  complainant's  claim."  This  would 
require  defendants  to  ascertain  fiom  what  acts  they 

•    lljoilled.          /'/. 

Injuries  Other  than  Mining  Ore. 

In  a  proper  case  an  injunction  will  issue  to  re- 
st r, tin  deposit  of  tailings,  l-'ullrr  r.  Stran  River  Co. 
i'.  Col<>.  i .' :  !••>  M.  R  Or  the  destruction  of 

flumes  or  ditches. — Power  r.  Klein.  .'7  /'.  ~,l-'>:  Mio- 
cene D.  Co.  v.  Jacobsen.  ///;  /'.  680.  Or  to  stay  the 
running  ui  an  incline  drift  to  cut  off  an  adversary's 
tunnel.— Mnntnna  Co.  V.  Clark.  Hi  M.  If.  BO;  ',  '  F. 
<;j';.  Against  assaulting  workmen  and  threats  to 
blow  up  the  mine. — Nankin'*  App,  /•;  Ml.  *  i.  Against 
salt-  of  milling  stock  on  the  ground  of  its  fluctuating 
value. — MrLi:rr  P.  Sfcermon,  7'/  /•'.  /.'///;  Carrie  V. 
./ours.  ~>n  B.  i  Kefused  against  cutting  timber 

on   claim    where    defendant   solvent    and    the   timber 
of   no   special   need    to   the  mine. — Heaney   v.   Butte 
'.     Refused  against  use  of  adits  underly- 


364  INJUNCTION. 

ing  plaintiff's  ground. — Boston  Co.  v.  Montana  Co. 
59  P.  919. 

Refused  against  upper  mill  where  it  is  using  all 
possible  effort  to  restrain  its  tailings. — Otaheite  Co. 
v.  Dean,  102  F.  929.  It  may  be  allowed  against 
an  option  holder  in  default  on  his  instalments. — 
Williams  v.  Long,  61  P.  1081.  A  defendant  can- 
not be  enjoined  from  "entering  or  trespassing  upon" 
ground  of  which  he  is  already  in  possession. — Id. 

Defendant  enjoined  from  dumping  with  election 
to  remove  the  deposited  waste  or  pay  damages. — 
White  v.  Lansing,  103  N.  Y.  8.  104. 

Courts  will  not  enjoin  in  cases  charged  with 
doubt  or  where,  on  the  plaintiff's  showing,  final  re- 
lief would  not  be  granted. — Crescent  Co.  v.  Silver 
King  Co.  45  P.  1093.  Though  to  enjoin  they  will 
not  require  so  strong  a  case  as  on  final  hearing. — 
Buskirk  v.  King,  12  F.  22.  And  it  may  be  allowed 
although  the  proving  up  is  not  yet  complete. — Maloney 
v.  King,  64  P.  351. 

The  distinction  between  the  class  of  cases  where 
Injunction  will  issue  to  restrain  timber  cutting  and 
where  it  will  be  treated  as  a  mere  trespass  remedia- 
ble only  at  law  is  well  stated  in  Gray  Lumber  Co.  v. 
Oarkins  (Ga.),  50  8.  E.  164. 

The  diversion  of  water  previously  appropriated 
for  power  purposes  should  be  enjoined:  decree  quiet- 
ing complainant's  title  is  not  adequate  relief. — Trade 
Dollar  M.  Co.  v.  Fraser,  148  F.  585. 

Practice — Answer  Not  Conclusive. 

As  a  rule,  in  equity  pleadings  where  the  defend- 
ant denies  the  allegations  of  the  bill  in  terms,  the 
writ  will  not  issue;  but  where  the  bill  is  supported 
by  affidavits,  and  is  filed  to  restrain  irreparable  mis- 
chief by  the  working  of  a  mine,  and  the  bill,  answer 
and  supporting  affidavits  being  considered  together, 
the  case  appears  as  stated — for  the  preservation  of 
the  subject  matter  of  controversy  and  as  a  rule  lim- 
ited in  its  application  to  mining  cases  and  others 
standing  on  analogous  facts,  where  the  substance  and 


INJUNCTION.  365 

not  merely  the  use  is  in  jeopardy — the  answer  is  not 
to  be  taken  as  conclusive,  if  there  remain  to  the  com- 
plainant such  a  showing  as  is  above  stated. 

Plaintiff  held  entitled  to  injunction  against  vio- 
lence, although  all  allegations  of  complaint  denied 
by  the  answer.  The  practice  in  mining  litigation  is 
liberal  to  enjoin  to  prevent  either  from  getting  un- 
fair advantage. — Safford  r.  ricnnning  (Ida.),  89  P. 

The  Venue  is  usually  fixed  by  the  code  and  com- 
monly in  the  county  where  the  land  lies.  When  not 
so  fixed,  the  court  having  jurisdiction  over  the  per- 
son may  enjoin  the  working  of  a  mine  in  another 
county. — Jennings  r.  Beale,  J?  Atl.  #.}N.  But  not  in 
another  State.— Lindsley  v.  Union  Co.  66  P.  . 
Johnstown  Co.  v.  -Butte  Co.  10  N.  Y.  Sup.  257.  Com 
pare  ButtcrfieM  v.  Nogalez  Co.  80  P.  3't~>. 

Notice. 

The  usual  period  of  notice  to  defendant  is  five 
days,  but  the  statute  merely  requires  a  notice  "in 
]>i< 'portion  to  the  urgency  of  the  case."  (Code  §  164.) 
And  where  the  defendant  prays  further  time  to  an 
swer,  it  is  usual,  on  slight  showing,  to  grant  a  re- 
straining order  or  preliminary  writ 

In  many  States  the  writ  of  injunction  issues  at 
once  upon  complainant's  showing,  and  the  issue 
comes  before  the  court  upon  motion  to  dissolve.  In 
Colorado  a  reasonable  notice  is  required  to  be  given 
before  the  writ  can  issue,  which  allows  the  de- 
fendant opportunity  to  file  his  answer;  so  that  the 
argument  is  heard  usually  upon  the  original  rnotion 
for  an  injunction  and  not  upon  the  motion  to  dis- 
solve. 

FOBM    OP   INJUNCTION    NOTICE. 

STATE  OF  COLORADO,  County  of  Lake:  SB. 

In  the  District  Court  of  snid  County. 
>imin    S.    Phillips,   Plaintiff,   v.    Frank    M.    Taylor    and 

77«,/,M/.v    I  .    Wood,  Defendants — Injunction. 
'!'•>  <nn<d   Defendants: 

You  and  each  of  you  will  take  notice  that  the  said 
plaintiff  will  apply  to  Hon.  Charles  Mott  Cavender,  Judge 
of  said  Court,  at  the  court  house,  in  Red  Cliff,  County  of 


366  INJUNCTION. 

Eagle,  in  said  State,  at  the  hour  of  two  o'clock  p.  m.  on 
the  10th  day  of  January,  A.  D.  1908 ,  or  as  soon  thereafter 
as  counsel  can  be  heard,  when  and  where  you  may  attend 
as  you  see  fit — for  a  writ  of  injunction  to  restrain  anU 
enjoin  you  and  each  of  you,  your  agents,  attorneys,  lessees, 
sub-lessees,  employees,  and  all  persons  under  or  in  privity 
with  you,  from  working,  mining,  extracting  or  carrying 
away  ore  from  the  Fair  Deceiver  Lode  Mining  Claim,  sit 
uate  on  Carbonate  Hill,  in  California  Mining  District,  in 
said  County  of  Lake,  and  for  other  relief :  and  that  plaintiff 
will  support  the  application  by  the  complaint,  affidavits, 
maps  and  documentary  evidence. 

Cripple  Creek,  January  4,  1908. 

.7.   ST.\M.I:V    .l<>Ni:s. 
Attorney   for   Plaintiff. 

Ex  Parte  Writs  to  enjoin  the  working  of  a  mine 
are  forbidden  by  statute. — Code,  §  Jd',. 

It  has  been  ruled  that  to  enjoin  the  sale  or  re- 
moval of  the  ore  is  not  an  injunction  against  mining. 
— Benton  v.  Hopkins,  ?'/  P.  891.  But  it  is  obvious 
that  in  most  cases  such  an  order  would  be  in  viola- 
tion of  the  spirit  of  the  Act. 

Practice  on  Hearing. 

The  notice  having  been  served,  the  complainant 
presents  his  bill  or  complaint  to  the  court,  or  judge 
at  chambers.  If  the  complaint  has  not  been  filed 
or  a  copy  served  with  the  notice,  it  is  usual  to  allow 
defendant  a  reasonable  time  to  answer. 

A  demurrer  is  rarely  interposed  to  a  bill  stating 
fully  the  complainant's  case.  And  if  interposed  and 
not  sustained,  the  defendant  is  not  in  position  to  ask 
for  time  to  answer  over. 

The  complainant  with  his  bill,  and  the  defendant 
with  his  answer,  may  file  affidavits  in  support  of  the 
bill  and  answer  respectively,  and  this  is  usually  ad- 
visable. 

The  answer  being  presented,  and  denying  fully 
the  merits  of  the  bill,  the  court  may  either  hear  the 
case  on  bill  and  answer  with  their  supporting  affi- 
davits, or  refer  the  matter  to  a  master  or  referee  to 
take  testimony. 


INJUNCTION. 

Consideration  of  Rights  of  lessee  losing  part  of 
term  by  injunction  against  work. — Stahl  v.  Van  Vlcck. 
',1  \.  /:  .;.-.-  ts  M.  if.  .'.;/. 

Working  Under  View  of  Court. 

Where  the  defendant  is  solvent  and  working  in 
miiu-rlike  manner  and  the  case  of  plaintiff  not  free 
from  doubt,  it  is  not  unusual  for  the  court  to  allow 
the  defendant  to  keep  at  work  under  conditions  of 
accounting  to  the  court  at  monthly  intervals,  and  of 
submitting  to  the  inspection  of  some  person  on  be- 
half  of  plaintiff  and  paying  the  net  or  gross  pro- 
ceeds into  court  according  to  the  nature  of  the  case 
and  tbi'  framing  of  the  order. 

Injunction  After  Appeal  Taken. 

The  practice  is,  where  the  defendant  in  the  suit 
or  issue  at  law  obtains  judgment,  to  dissolve  the 
writ;  on  final  verdict  for  plaintiff  to  make  the  writ 
perpetual. — Boston  Co.  v.  Montana  Co.  66  P. 
But  the  lower  court  has  the  power  (though  it  will 
only  be  exercised  in  a  case  where  the  appeal  has 
great  merit  or  doubt)  to  continue  the  injunction 
after  appeal  taken  by  the  plaintiff. — Bullion  Co.  v. 

>'ka  Co.  I.'  r  '.'.".  Maloney  v.  King.  11  P. 
And  in  such  case  the  Supreme  Court  will  not 
interfere  with  it.—Sheaffer's  App.  100  Pa.  St. 
But  the  appeal  itself  does  not  stay  the  writ  or  the 
suspension  of  the  writ. — Bullion  Co.  v.  Eureka  Co. 
15  M.  R.  ',',:>:  5  Ut.  151 

The  appellate  Court  on  remanding,  may  direct 
the  lower  court  to  order  the  property  preserved  by 
injunction.— Erhanlt  v.  Boaro.  113  V.  K.  697;  1~>  M. 
If.  ;/7.  Lockhart  v.  Leeds,  195  U.  8.  ', : 

The  appellate  Court  may  enjoin. — Ajax  Co.v.  Tn- 
umph  Co.  60  P.  523.  But  will  generally  leave  the 
matter  to  the  discretion  of  the  Court  below. — Steams- 
Roger  Co.  v.  Brown,  I1.'t  F.  <)',». 

On  appeal  from  an  order  dissolving  an  injunction 
a  supersedeas  continues  the  writ  in  force. — Neiv 
River  Co.  v.  Seeley,  in  F.  981. 


368  INJUNCTION. 

Malicious  Prosecution  will  lie  for  suing  out  the 
writ  without  probable  cause,  and  damages,  even  to 
the  loss  of  anticipated  profits  may  be  allowed. — New- 
ark Co.  v.  Upson,  40  Oh.  St.  77.  But  it  will  not  lie 
where  there  was  probable  cause. — Wright  v.  Ascheim, 
17  P.  125. 

Abuse  of  the  Writ. 

Where  plaintiff,  having  obtained  injunction 
against  defendant's  mining,  entered  upon  and  took 
possession  of  the  defendant's  works,  restoration  was 
ordered,  on  motion. — Van  Zandt  v.  Argentine  Co.  48 
F.  110. 

Verification. 

Both  bill  and  answer  should  be  verified,  and  the 
answer  must  be  sworn  to  even  where  the  oath  ot 
defendant  is  waived  by  the  proper  clause  to  that 
effect  in  the  bill.  In  the  latter  case  the  oath  has 
not,  indeed,  the  technical  effect  of  a  sworn  answer, 
but  the  answer  has  its  proper  effect  as  a  plea  and 
the  further  effect  of  an  affidavit  of  the  defendant. 
As  to  verification  by  corporation,  see  Butte  Co.  v. 
Boston  Co.  24  Mont.  !.'•'>. 

Bond. 

The  fact  of  a  bond  being  filed  for  the  relief  of 
the  defendant,  if  injured,  is  a  protection  to  him  only 
in  theory.  A  bond  is  seldom  available  to  the  ulti- 
mate vindication  of  the  right;  it  is  no  lien;  the 
measure  of  damages  is  vexed  and  unsettled. — Dona- 
hue v.  Johnson,  37  P.  322;  Coosaw  Co.  v.  Carolina 
Co.  75  F.  860.  In  the  Federal  Courts  the  damages 
may  be  assessed  upon  dissolution  of  the  writ. — Coo- 
saw  Co.  v.  Farmers  Co.  51  F.  107.  There  can  be  no 
recovery  on  the  bond  where  the  writ  was  rightfully 
issued. — Yarwood  v.  Cedar  Canon  Co.  7.9  P.  483. 

Only  counsel  fees  for  obtaining  the  dissolution, 
not  for  defending  the  suit,  are  recoverable. — Donahue 
v.  Johnson,  9  Wash.  187:  37  P.  322;  Montgomery  v. 
Gilbert,  24  Mont.  121;  60  P.  1038;  Quinn  v.  SiUca. 
76  P.  555. 


INJTNVTK  >X.  369 

Measure  of  damage  where  coal  mining  had  been 
1. — V  it  inn  r.   Haiti  win   Co.  16  P.  552. 

Mandatory  Writ. 

Section  175  of  the  Colorado  Code  provides  that 
\\heiv  possession  of  a  mine  is  taken  by  violence  or 
during  intervals  of  labor,  a  mandatory  writ  restor- 
ing possession  shall  issue.  This  Act,  passed  orig- 
inally in  1874,  has  been  found  effective  to  accomplish 
the  object  intended,  and  the  forcible  dispossession  of 
parties  working  a  mine  is  now  almost  unheard  of. 
It  was  construed  and  enforced  in  Sprague  v.  Locke, 
28  P.  J'i .'. 

A  similar  Act  has  been  sustained  by  the  Supreme 
Court  of  Dakota.— Cole  v.  Cady,  3  N.  W. 

A  hearing  under  this  Act  goes  only  to  the  mat- 
ter of  the  unlawful  dispossession  of  the  plaintiff  and 
the  writ  leaves  the  parties  to  their  legal  rights  on 
all  other  questions  as  though  no  such  writ  had  is 
sued. 

An  injunction  mandatory  in  effect  and  implying 
affirmative  acts  from  the  defendants  or  the  surrender 
of  possession  of  premises  is  an  unusual  sort  of  re- 
lief, to  he-  ^ranted  with  great  caution,  but  is  not  with- 
out prec  <in  as  the  result  of  an  interlocutory 
decree,  ami  \vitlmut  the  aid  of  any  such  statute. — 
Cole  Co.  v.  Virginia  Co.  7  M.  R.  516;  1  Saw.  685; 
Lehigh  Co.  v.  Trotter,  10  Atl.  608;  Horsky  v.  Heir  mi 
Co.  83  P.  689. 

The  object  of  the  Act  is  to  allow  the  court  or 
judge  to  grant  speedy  and  practical  relief  whenever 
a  party,  in  peaceable  possession,  has  been  ousted  by 
force  or  fraud,  without  regard  to  any  question,  ex- 
cept the  fact  and  manner  of  dispossession,  and  for 
this  object  it  has  been  held  valid  and  not  unconsti- 
tutional by  all  or  nearly  all  the  judges  at  nisi  priiis, 
and  has  remedied  one  of  the  greatest  evils  ever  com- 
plained of  in  the  mining  counties. 

The  Federal  Court  of  Colorado  District,  shortly 
after  the  admission  of  the  State,  declined  to  accept 
jurisdiction  under  this  Act.  But  under  the  principle 


370  INSPECTION  AND  SURVEY. 

laid  down  in  the  later  case  of  Aspen  Co.  v.  Rftcfcer, 
J.s  F<><1.  2>.>..  as  to  United  States  Courts  exercising 
equity  powers  where  conferred  by  State  Statute  it  is 
likely  that  its  jurisdiction  in  a  case  with  proper 
parties  would  not  be  at  this  time  questioned. 

The  practice  under  the  statute  Is  peculiar.  As 
soon  as  the  complaint  is  filed  the  court  is  directed 
ipso  facto  to  grant  a  temporary  writ  restraining  the 
working  of  the  claim.  Such  mandatory  legislative 
dictation  to  the  judiciary  is  of  very  doubtful  valid- 
ity, seeming  to  take  away  all  judicial  discretion,  but 
whatever  be  its  proper  construction  the  other  pro- 
visions of  the  section  are  not  hurt  by  this  isolated 
provision;  they  refer  merely  to  the  division  of  time 
between  the  parties  for  taking  testimony  and  for 
a  speedy  adjudication,  and  forbid  the  use  of  such 
a  writ  in  favor  of  a  party  who  procured  his  own 
possession  by  violation  of  the  spirit  of  the  Act. 

In  framing  bills  under  this  Act  it  is  not  ad- 
visable to  pray  any  relief  further  than  the  prelim- 
inary writ  and  the  restoration  of  possession. 

At  least  five  days'  notice  of  application  must  be 
given;  the  form  on  page  365  is  sufficient  to  the 
words  "Writ  of  Injunction,"  after  which  conclude  as 
follows: 

Having  tin-  force  and  effect  of  n  writ  of  Restitution. 

ivstoring  plaintifT  to  the  possession  of  the  l-'ntnlitii  Lode 
Mining  <'laim.  situated  in  Urum!  Ixhiml  Mining  IMstrict. 
<'onnty  of  H'mlihr.  ami  for  :i  T.-mporary  Injunction  M 
straining  tho  working  of  said  claim  in  accordance  with  tlu» 
terms  of  Section  17.".  of  tlio  Code,  and  that  plaintiff  will 
support  the  application  l.y  the  complaint  and  affidavits. 
Boulder,  J<iint<nii  ?.  1907.  RICHARD  H.  WHHI:I  v 

Attorney  for  Plaintiff. 

County  Courts  are  forbidden  by  Colorado  Stat- 
ute to  interfere  with  the  enjoyment,  working  or  pos- 
session of  a  mining  claim. — K.  $.  §  1~> 


INSPECTION  AND  SURVEY. 

Under  section  398  of  the  Colorado  Code  (see  also 
R.  8.  §§  4218,  4230),  either  party,  after  suit  is  com- 


INSPECTION  AND  SURVEY.  ::T1 

menced,  is  allowed  the  privilege  of  a  survey  and  in- 

tion  of  the  premises  held  by  the  adverse  party, 
after  demand  and  refusal,  and  after  certain  awkward 
and  useless  notices  and  affidavits — the  sections  cited 
being  probably  the  most  complete  instance  of  in- 
volved and  turgid  composition  ever  found  on  a 
statute  book. 

After  analysis  of  its  clauses  and  throwing  out 
such  portions  as  must  be  discarded  in  order  to  give 
grammatical  sense  to  the  paragraph,  it  seems  that 
the  procedure  is  as  follows: 

1.  A  demand  in  writing  is  made  for  permission 
to  survey  and  inspect  some  certain  portion  of  the 
premises. 

i'.  The  opposite  party  lias  three  days  in  which 
to  consent  to  or  refuse  this  demand. 

3.  A    refusal    being    had    and    the    three    days 
elapsed,  the  party    presents  to  the  court  or  judge  a 
petition  under  oath    in   whirh   he  must   set    forth  his 
interest  in  the   premises  and  "the  reason  why  it  is 
necessary"  that  he  should  have  such  survey  and  in- 
spection;  stating  the  demand  made  and  the  refusal, 
and  praying  u  tor  survey  and  inspection. 

4.  The    court    or   judge   then   ftxes   a   time   and 
place    for   hearing    this    petition   and    orders    notice 
thereof  to  be  served  at  least  three  days  before  the 
hearing. 

5.  On  the  day  set  ihe  petition  is  argued  and  may 
be  aided  or  resisted  by  affidavits. 

6.  The  court  or  judge,  if  satisfied  that  the  "facts 
stated  in  the  petition  are  true."  makes  the  order. 

Three  inspectors  are  allowed  to  accompany  the 
surveyors,  an  interference  with  them  is  made  con- 
tempt and  the  costs  are  taxed  against  the  losing 
party. 

This  right  of  inspection  always  existed,  in  courts 
of  equity  at  least,  and  has  been  frequently  exercised. 
—Knnor  r.  Banrrll.  \t  M.  If.  I'H  :  1  DeO.  F.  &  J.  5«P; 
Lonsdale  r.  0  >'  Bligh  O.  X.  MX;  7  M.  R.  >;.'U  ; 

Thornburgh  v.  Savage  Co.  7  M.  R.  667;  Dugdale  v. 
Robertson,  IS  M.  R.  fit;  >. .-  .?  K<nj  a  J.  Mi.l :  Lewis  v. 
N  Hare.  .97;  8  M.  R.  1 'j :  Bennitt  v.  White- 


372  INSPECTION  AND  SURVEY. 

House,  28  Beav.  119;  8  M.  R.  17;  Stockbridge  Co.  r. 
Cone  Works,  6  M.  R.  317;  102  Mass.  80. 

A  statute  giving  power  to  compel  inspection  is 
not  unconstitutional  or  oppressive. — St.  Louis  Co. 
v.  Montana  Co.  23  P.  510;  152  U.  8.  160;  In  re  Carr 
35  P.  818;  Howes  Co.  v.  Howe's  Ass'n.  .',',  X.  Y.  S. 
848.  And  it  may  be  ordered  without  statute. — Bin*' 
Bird  Co.  v.  Murray.  23  P.  !<>>.:. 

It  is  now  the  recognized  practice  in  mining  con- 
tests, on  the  application  of  the  party  out  of  possession. 
to  direct  a  survey  of  the  mine. — Penny  v.  Central 
Coal  Co.  138  F.  769. 

Cost  of  pumping  compelled  by  court  to  aid  in- 
spection, allowed  to  defendant  in  suit  on  injunction 
bond.— Tyler  Co.  v.  Last  Chance  Co.  90  F.  16. 

Inspection  should  be  allowed  to  keep  pace  with 
development:  and  it  may  be  allowed  through  oppos- 
ing parties'  shaft.— State  v.  District  Court,  74  P.  1S2. 
Defendants  to  prove  that  their  discovery  was  on  a 
vein  formation  gave  evidence  of  the  formation  and 
conditions  at  the  Hercules  Lode,  a  vein  in  the  same 
locality  in  their  exclusive  possession,  but  refused 
permission  to  plaintiff  to  inspect  the  Hercules.  The 
case  was  reversed  for  such  manifest  unfairness  of 
the  trial.— Ambergris  M..Co.  v.  Day.  85  P.  i 

Survey  Without  Suit. 

A  statute  of  Montana  authorizes  a  survey  by  or- 
der of  Court  without  institution  of  suit  and  it  has 
been  held  that  this  is  due  process  of  law. — .Vo// 
Co.  v.  St.  Louis  Co.  152  U.  S.  160.  But  it  requ 
an  express  statute  to  allow  of  any  such  unusual  pro- 
cedure.— State  v.  Dist.  Court.  68  P.  570.  And  the 
Colorado  Statute  cannot  be  construed  to  allow  it 
without  a  supporting  suit  already  begun. — Peo.  v. 
De  France,  68  P.  267.  In  later  cases  from  Montana, 
the  Court  defines  the  essential  limitations  and  condi- 
tions which  should  be  imposed  on  petitions  of  this 
kind.— State  v.  District  Court.  73  P.  230;  76  P.  206. 

It  may  be  allowed  when  defendant's  secret  work- 
ings are  approaching  plaintiff's. — State  v.  District 
Court,  68  P.  861. 


STATUTE  OF   LIMITATIONS.  373 

View  by  Jury. 

Under  the  Colorado  Code,  §  206,  either  party  may 
demand  that  the  jury  view  the  mine.  The  better 
practice  of  the  Federal  Court  in  the  same  State  is 
never  to  permit  it.  The  arguments  in  favor  of  a 
jury  view  in  such  cases  are  plausible,  but  not  enough 
to  offset  the  inconvenience  and  often  the  unfairness 
of  such  view.  Barring  exceptional  instances,  unless 
by  the  compulsion  of  a  Statute  it  ought  never  to  be 
allowed.  But  where  such  view  has  been  had  an  ap- 
pellate court  may  consider  it  conclusive  as  to  what 
the  jury  saw  on  the  ground. — Ormond  v.  Granite  Mt. 
Co.  28  P.  289;  McCormick  v.  Parriott  (Colo.),  80  P. 
1044- 

A  party  to  the  suit  may  be  appointed  a  guide 
to  show  the  jury  the  mine. — Wilson  v.  Harnette 
(Co/o.),  75  P.  395. 

In  Golden  v.  Murphy,  75  P:  625,  the  trial  judge 
personally  inspected  the  mine  along  with  the  jury, 
and  the  jury  finding  for  the  defendants  the  judge 
granted  a  new  trial.  The  defendants,  very  justly  as 
it  seems  to  us.  contended  that  this  took  the  facts 
from  the  jury,  but  the  appellate  Court  sustained  the 
judgment  on  other  grounds. 


STATUTE  OF  LIMITATIONS. 


Suit  to  Annul  Patent. 

8.  That  suits  by  the  United  States  to  vacate 
and  Minnil  any  patent  heretofore  issued  shall  only  be 
brought  within  five  years  from  the  passage  of  this  act,  and 
suits  to  vacate  and  annul  patentR  hereafter  Issued  shall 
only  be  brought  within  six  years  after  the  date  of  the 
issuance  of  such  patents.  *  *  *  — .4.  C.  March  Sf  1K)1. 
>"/>.  it.  9S9. 

The  above  Section  is  construed  in  Peabody  Co. 
v.  Gold  Hill  Co.  106  F.  941. 

Section  2332  of  the  United  States  Statutes  ex- 
pressly recognizes  possession  of  a  mining  claim  dur- 
ing the  periol  fixed  by  the  State  Act  as  sufficient  to 


374  STATUTE  OF  LIMITATIONS. 

establish  a  right  thereto. — 420  Mining  Co.  v.  Bullion 
Co.  9  Nev.  240;  1  M.  R.  114.  And  a  claim  may  be 
sued  for  under  the  title  so  developed. — Glacier  Mt. 
Co.  v.  Willis,  J21  U.  8.  \lt;  /?  .17.  /,*.  in.  Such  title 
by  continued  possession  is  equivalent  to  location. — 
Altoona  Co.  v.  Integral  Co.  45  P.  1041. 

Adverse  possession  for  the  statutory  period  gives 
title. — Cox  v.  Clough,  10  Cal.  343:  Harriman  Co.  v. 
Butterfield  Co.  51  P.  531':  Lavagnino  v.  Uhlig,  II  P. 
1046. 

The  apparently  clear  construction  of  Sec.  2332 
is  that  in  ex  parte  cases  an  applicant  for  patent  may 
rely  on  his  continued  possession  without  producing 
abstract  of  title,  and  that  a  party  in  like  position 
could  adverse  on  the  same  ground. — 29  L.  D.  401- 
And  that  if  an  adverse  claim  was  filed,  in  the 
suit  supporting  such  adverse  either  party  could  rely 
on  such  possession  until  defeated  by  the  production 
of  some  superior  title.  And  such  is  the  import  of  all 
the  above  citations.  But  in  Montana  and  Colorado 
the  section  has  been  construed  as  a  mere  permission 
to  support  patent  applications  on  possession,  in  non- 
contested  cases. — McCowan  v.  Mcl.au.  /o  P.  602; 
Cleary  v.  Skifflch,  il  .17.  I!,  ts',. 

Seven  years  complete  the  bar  of  the  Statute  in 
Colorado,  ( R.  £.  §§  4084-4093).  and  all  taxes  must 
be  paid. — Eberville  v.  Leadville  Co.  /;;  7'  inn.  The 
period  varies  in  every  state,  in  Nevada  being  as  low 
as  two  years. — South  End  Co.  v.  Tiiuici/.  .i.l  P.  8.9; 
38  P.  401-  And  in  Montana  only  one  year  as  to 
possessory  claims. — Horst  v.  Shea.  .}.'>  /'.  .'>>>',. 

The  possession  of  the  claim  must  be  open  and 
notorious. — Hamilton  v.  S.  Nevada  Co.  J5  M.  R.  3 1  /  ; 
33  F.  562.  And  exclusive  and  hostile.— Tyee  M.  Co. 
v.  Langstedt.  121  F.  110.  Secret  underground  mining 
will  not  start  the  bar. — Pierce  v.  Barney.  58  Atl.  l~ii. 

The  continuous  working  of  a  mine,  or  even  its 
working  during  successive  seasons  with  intervening 
seasons  during  which  the  mine  is  left  idle,  accord- 
ing to  the  custom  of  the  country,  is  as  complete  an 
adverse  possession  as  could  be  gained  by  agricultural 


STATUTE  <>F  LIMITATIONS.  375 

opt  'rations  or  other  acts  of  possession. — titephenson  v. 
U'/;.s'o//.  .;:  \r/s.  J83;  /.;  M.  /,'.  \08;  \\'ilson  v.  Henri/. 
1  M.  If.  l.-.t:  .<:,  \yis.  I'll:  I  M.  I!.  151;  ',<>  U'/.v.  594; 
'  M.  Co.  v.  HHllinn  Oo.  II  M.  If.  608;  •>  8otO,  <;•>'/: 
Bell  v.  Benson.  ~>ti  Ahi.  ',  ',  ',. 

In  the  case  of  Harris  v.  Equator  Co..  cited  p.  350, 
it  vas  intimated  in  the  opinion  of  the  court,  HAL- 
ii  n,  J.,  that  where  a  party  had  been  in  possession 
mining  claim  for  the  period  of  the  statute  of 
limitations,  such  fact  raised  a  presumption,  at  least 
imain.-t  a  wrongdoer,  that  he  held  under  a  valid  loca- 
lion.  without  proof  of  the  various  acts  of  location, 
and  Bach  murt  from  the  nature  of  things  be  the  ulti- 
mate >!<•<•. sioi.  of  all  courts  upon  this  point. 

As  to  the  running  of  the  statute  where  money 
Is  to  out  «>f  the  proceeds  of  the  mines,  see 

<'o.  v.  Stephens.  15  P. 

The  statin.  <>i  limitations  does  not  begin  to  run 
\\hilt  the  title  is  in  the  United  States,  except  as 
betvcen  parties  both  of  whom  claim  by  possessory 
litlr  only.— -King  v.  Thorn  <i*.  i  _>  r  $65;  Weibold  v. 
Doris.  /;  /».  965.  Nor  until  the  patent  actually  is- 
sues.— No*//;/  /•;//'/  Co.  v.  Tinney.  3.S  /'.  /^/:  Clark  v. 
nnf,  ///.  S 

To  make  adverse  possession  available  there  must 
be: 

1.  The  occupation  or  use  of  the  land. 

2.  Claim  and  color  of   title. 

It  lias  been  ruled  that  a  party  following  a  pat- 
ented vein  on  its  strike  bevond  its  side  lines  has  not 
sufficient  color  of  title  to  maintain  such  defense. — 
Lebanon  Co.  v.  Rogers.  8  Co7o.  3ft.  And  that  min- 
ing on  a  vein  apexing  outside  the  party's  claim  is 
not  adverse  possession. — Davis  v.  Shepherd.  72  P.  57. 

Possession  under  title  bond  gives  claim  and 
color  after  payment  of  purchase  money. — Woods  r. 
MnntrraUn  Co.  s ',  Ala.  ~,i;<i ;  J  Am.  St.  R  993. 

In  instances  the  title  may  ripen  without  being 
initiate  on  any  paper. — Minnesota  Co.  v.  Brasier.  ',~> 
Uisch  v.  Wiseman,  59  P.  HI  I. 


376  BUREAU  OF  MINES— INSPECTOR. 

As  to  actions  of  trespass  for  coal  or  ore  'taken 
but  the  fact  not  ascertained  by  plaintiff  within  the 
statutory  period — see  Lewey  v.  Frick  Co.  31  Atl.  261; 
18  M.  R.  179;  Williams  v.  Pomeroy  Co.  6  M.  R.  195; 
31  OU.  St.  583. 

And  as  to  that  class  of  cases  (ac  in  secret  under- 
mining) where  a  long  interval  may  elapse  before 
the  resulting  injury,  see  Hall  v.  Duke  of  Norfolk,  L. 
R.  (1900),  2  Ch.  493;  Slerrett  v.  Northport  Co.  10  P. 
266;  Noonan  v.  Par  dee,  21  M.  R.  517;  200  Pa.  ;?f. 

In  Pennsylvania  it  was  held  that  the  statute 
began  to  run  "when  the  support  of  the  surface  was 
so  weakened  that  it  might  fall." — Tischle  v.  Penn. 
C.  Co.  66  Atl.  988. 


BUREAU  OF  MINES— COMMISSIONER- 
INSPECTOR. 


By  R.  8.  Colo.,  section  4259-4306,  are  pre- 
srribed  the  duties  of  the  Bureau  of  Mines,  of  the 
Commissioner  of  Mines  and  three  Inspectors  of 
metalliferous  mines  with  strict  provisions  for  safe- 
guarding. 

They  regulate  the  storage  of  explosives,  escape- 
ways,  compartment  shafts,  signals  and  ventilators, 
and  forbid  the  use  of  iron  tamping  bars. 

They  require  all  serious  accidents  to  be  reported 
and  investigated  and  provide  penalties  for  failure  to 
comply  with  the  provisions  of  the  act. 


ASSAYS. 


Gold,  silver  and  platinum  are  assayed  for  the 
number  of  ounces  per  ton  of  ore;  lead,  copper,  zinc 
and  the  base  metals  generally  for  the  per  cent,  of  the 
minerals  in  the  ore. 

An  assay  is  the  test  of  the  value  of  a  specimen 
or  quantity  of  ore  by  the  extraction  of  the  amount 


ASSAYS.  377 

of  silver,  gold  or  other  metal,  contained  in  a  minute 
but  exact  fraction,  which  amount  is  supposed  to  be 
proportionate  to  the  whole  amount  found  in  the 
quantity  from  which  the  fraction  was  obtained.  Sup- 
posing the  assay  to  be  correct  its  importance  in 
determining  the  quantity  of  metal  in  the  ore  of  the 
mine,  or  the  value  of  the  mine  as  deduced  from  its 
ore  product,  depends  on  the  size  of  the  lot  from 
which  it  was  obtained,  and  the  manner  in  which 
such  lot  was  selected.  What  are  called  specimen 
:ire  of  no  value  whatever,  further  than  to 
show  the  contents  of  the  identical  specimen  from 
which  made,  but  are  often  used  to  deceive  persons 
ignorant  in  such  matters. 

While  the  assay  shows  only  the  contents  of  that 
portion  of  ore  that  has  been  assayed,  its  importance 
lies  in  its  acceptance  as  indicating  the  contents  of 
other  ore.  of  which  the  portion  assayed  was  a 
•  .-ample." 

Between  buyer  and  seller  ore  is  usually  sampled 
by  the  I'oniK T.  under  supervision  of  the  latter,  if 
he  choose  to  be  present.  The  sample  taken  (pulver- 
ized >  is  divided  into  portions — one  for  the  buyer,  one 
for  the  seller,  and  one  to  be  kept  for  reference  in 
case  of  difference  between  the  other  two.  After 
division,  each  portion  is  in  itself  a  sample.  Both 
buyer  and  seller  have  a  control  assay  (assay  in  du- 
plicate) made  of  their  respective  samples.  The  sale 
is  customarily  made  on  the  assay  of  the  buyer,  and 
the  sample  of  the  seller  is  intended  for  a  check  on 
the  assay  of  the  buyer. 

The  results  of  carefully  made  assays,  should  not 
differ  more  than  two  oz.  silver  or  two  tenths  oz.  gold 
except  where  the  ore  contains  much  free  gold,  native 
silver  or  silver  glance,  the  particles  of  which  cannot 
be  ic-dnced  to  exact  evenness,  and  make  assays  of 
these  classes  of  ore  treacherous.  In  case  of  dis- 
agreement, the  third  portion  of  the  original  sample, 
called  the  umpire,  is  tested  by  a  third  party  for  a 
control,  and  this  assay  is  final  unless  there  be  such 
unusual  and  excessive  variation  as  to  suggest  the 
necessity  of  resampling. 


378  ASSAYS. 

The  intent  of  an  assay  is  to  show  the  true  value 
of  the  ore,  and  if  it  is  so  taken  as  not  to  show  such 
value,  proof  of  assays  otherwise  taken  may  be  given 
in  evidence.— Phipps  v.  Hully,  1,~>  M.  R.  ,l')0 ;  18  Nev. 
133.  Difference  in  results  of  wet  and  fire  assays. — 
In  re  Puget  Co.  96  F.  90. 

Sales  based  on  assay  are  not  bound  by  the  assay 
in  case  of  gross  error. — Cox  v.  Prentice,  3  M.  tt-  N. 
344-  As  to  the  custom  of  assayers,  and  of  which 
party,  if  of  either,  he  is  the  agent,  see  this  case  and 
Trotter  v.  Heckscher,  JtO  N.  J.  Eg.  612;  42  Id.  251. 
As  to  deductions  for  moisture  see  this  litigation  con 
tinned  in  Lehigh  Co.  v.  Trotter,  Jt>  N.  J.  Eg.  d',1. 
Sufficient  proof  by  assay  that  samples  were  salted 
with  powdered  silver. — Mudsill  Co.  v.  Watrnus.  HI 
F.  163.  By  assay  with  litharge,  a  trace  of  silver 
may  be  shown  in  any  kind  of  rock. — Ormond  v.  Gran- 
ite Mt.  Co.  28  P.  289.  An  assay  of  two  lots  is  no 
proof  of  the  value  of  a  series  of  shipments. — Pitts 
burg  Co.  v.  Olick,  Jt2  P.  188.  Method  of  sampling 
and  assay  on  ore  sales  described. — Chisholm  v.  Eagle 
Ore  Co.  l.'i',  /•'.  tiln. 

A  purchaser  of  phosphate  rock  is  entitled  to  de- 
ductions for  its  falling  below  agreed  assay,  and  is 
not  bound  to  accept  at  all  if  materially  short. — 
Stone  Mines  v.  Southern  Co.  56  S.  E.  .'' 

Mill  samples  control  car  samples. — Vietti  v.  Nes- 
bitt,  Jfl  P.  151;  Fox  v.  Hale  Co.  Jtl  P.  308.  The 
"Assay  value"  of  gold  means  its  universal  standard 
value  and  not  the  value  of  local  gold  bullion. — Id. 
But  a  contract  to  pay  95  per  cent,  of  the  silver  con- 
tents of  the  "product  of  said  ore"  does  not  mean  95 
per  cent,  of  the  assay  value  of  the  raw  ore. — Silver 
Co.  v.  N.  C.  Sm.  Co.  29  S.  E.  <)',<>. 

An  assay  is  material  proof  on  an  issue  as  to 
whether  certain  rock  is  mineral  bearing. — Healey  v. 
Rupp,  63  P.  319. 


SCHOOL  OF  .MIXES.  379 

SCHOOL  OF  MINES. 


The  General  Assembly  may  provide  that  the  Sci- 
ence of  Mining  and  Metallurgy  be  taught  in  one  or 
more  of  the  institutions  of  learning  under  the  pat- 
ronage of  the  State. — Colo.  Const.  Art.  16,  /Set.  /. 

1'nder  the  above  provision  the  "School  of  Mines" 
at  Gul'lrn  is  especially  incorporated,  and  is  supported 
by  the  State. 

Its  declared  object  is  to  furnish  "such  instruc- 
tion as  is  provided  for  in  like  technical  schools  of 
a  high  grade,"  and  it  is  authorized  to  confer  de- 
grees. 

The  course  includes  four  years  of  two  terms 
each.  These  are  divided,  after  the  second  year,  into 
Mining  and  Metallurgical  Engineering 

Similar  State  schools  are  established  at  Rolla, 
Missouri;  Houghton,  Michigan;  Rapid  City,  South 
Dakota.  Butte.  Montana;  Moscow,  Idaho;  Blake, 
I  tab,  and  Socorro,  New  Mexico. 

The  Universities  of  Arizona,  California,  Nevada, 
North  Dakota  and  Wyoming  have  special  depart- 
ni< -ins  «)\«  ting  the  same  ground 


380  LAND  OFFICE  RULES 


LAND  OFFICE  REGULATIONS. 


Re-Issued  by  the  General  Land  Office,  May  21, 
1907. 

NATURE    AND    EXTENT    OF    MINING    CLAIMS. 

1.  Mining  claims  are  of  two  distinct  classes:   Lode 
claims  and  placers. 

LODE    CLAIMS. 

2.  The  status  of  lode  claims  located  or  patented  previous 
to  the  10th  day  of  May,  .1872,  is  not  changed  with    regard 
to  their  extent  along  the  lode  or  width  of  surface:  but   tin- 
claim   is   enlarged  by   sections   2322   and   2328,    l.y    investing 
the  locator,   his  heirs  or  assigns,  with   the   right   to  follow. 
upon  the  conditions  stated  therein,  all  veins,  lodes,  or  !<•'< 
the   top   or   apex   of  which   lies   inside  of   the  surface    lines 
of  his  claim. 

3.  It  is  to  be  distinctly  understood,  however,  that  the  law 
limits  the  possessory  right  to  veins,  lodes,  or  ledges,  «//»»•»• 
than   the    one   named    in    the   original    locaTion,    to   such    MS 
were  not  adversely  claimed  on  May  10,  1872,  and   that   where 
such  other  vein  or  ledge  was  so  adyersely  claimed  at   that 
date  the  right  of  the  party  so  adversely  claiming   is   in  no 
way  Impaired  by  the  provisions  of  the  Revised  Statutes. 

4.  From  and  after  the  10th  May,  1872,  any  person  who  is 
a  citizen  of  the  United  States,  or  who  has  de< -In red  his  in- 
tention to  become  a  citizen,  may  locate,  record,  and  hold   .1 
mining  claim  of  flftci  a  Inunlrcd  linear  feet  along  the  course 
of  any   mineral  vein  or   lode  subject   to   location:    «»r  an   as 
sociation  of  persons,  severally  qualified  as  above,  may  make 
joint  location   of  such  claim  of  fifteen  hini<lr«I   feet.   hut    in 
no  event  can  a   location   of  a  vein   or  lode  made   a  HIM-   the 
l()th   day  of  May,    1872,   exceed   fifteen   hundred   feet   along 
the  course  thereof,   what* -vn-  may   he  the  number  of  persons 
composing  the  association. 

5.  Width— Surface  Ground.— With    regard   to  the  extent 
of  surface  ground  adjoining  a  vein  or  lode,  and  claimed  for 
the  convenient  working  thereof,  the  Revised  Statutes  provide 
that  the  lateral  extent  of  locations  of  veins  or  lodes  made 
after  May  10,   1872.   shall   in  no  case   exceed   three   hundred 
feet  on  each  side  of  the  middle  of   the   r<in   at   the   surface. 
and    that   no    such    surface    rights    shall    be    limited    by    any 
mining    regulations    to    less    than    twenty-five    feet    on    each 
side  of  the  middle  of  the  vein  at  the  surface,  except  when- 
adverse     rights     existing     on     the     10th     May.     1872.     may 
render    such    limitation    necessary :    the    end    lines    of    such 
claims  to  be  in  all  cases  parallel  to  each  other.    Said  lateral 


LAND  OFFh'K   KTLES  881 

-uremonts  ran  not  extern!  beyond  three  hundred  feet  on 
•  itlnr  side  of  the  middle  of  the  vein  at  the  surface,  or  such 
distance  as  is  allowed  by  local  laws.  For  example :  400 
au  not  be  taken  on  one  side  and  200  feet  on  tne  other. 
If,  however,  300  feet  on  each  side  are  allowed,  and  by  i«  a 
*on  <>f  prior  claims  but  100  feet  can  be  taken  on  one  side, 
the  locator  will  not  be  restricted  to  less  than  300  feet  on 
the  other  side;  and  when  the  locator  does  not  determine 
by  exploration  ichcre  the  middle  of  the  vein  at  the  surface 
is.  his  discovery  shaft  must  be  assumed  to  mark  such  point. 
6.  Size  of  Claim. — By  the  foregoing  it  will  be  per- 
ceived that  no  lode  claim  located  after  the  loth  May.  isT'J. 
ran  exceed  a  parallelogram  fifteen  hundred  feet  in  length"  by 
six  hundred  feet  in  width,  but  whether  surface  ground  of 
that  width  can  be  taken  depends  upon  the  loral  regulations 
or  Territorial  laws  in  force  in  the  several  mininu 
districts:  and  that  no  such  local  regulations  or  Si  a 
Territorial  laws  shall  limit  a  vein  or  lode  claim  to  less 
than  fifteen  hundred  feet  along  the  course  thereof,  whether 

''•cation  is  made  by  one  or   more   persons,   nor  can   sur 
face  rights  be  limit.  ;  feet   in  width  unless 

rse    claims  ..u     the     Huh    day    of    May.     IST'J. 

render  such  lateral   limitation  necessary. 

7      Location  Certificate.—  Locators   can   not  exercise  too 
much  care  In  defining  their  locations  at  the  outset,  inasmuch 

he    law    requires    that   all    records    of    mining    locations 
made  v    10.    1872,   shall    contain    the    name 

"i-  names  of  the  locators,  the  date  of  the  location,  and  such 

'inn    ,,f    th,     <l>nn\    nr    <l<iiina    located,    by    ret'.: 
to   some    natural    object    or    permanent    monument,    as    will 
identify   the  elaim. 

8.  No  lode  claim  shall  be  located  until  after  the  discovery 
of  a  vein  or  lode  within  the  limits  of  the  claim,   the  object 
of  which  provision   is  evidently  to   prevent    the  appn.pri. 

<-t"  presumed  mineral  ground  for  speculative  purposes,  to 
the  exclusion  of  nnnn  fi'l'  pr-.speeiors,  before  suHiei.-iit  work 
has  been  done  to  determine  \\h«-t ITer  a  vein  or  lode  really 

9.  Discovery — Ties — Description — The    claimant    should 
therefore,   prior  to  locating  his  claim,   unless   the  vein  can 
be   traced   upon   the  surface,   sink   a   shaft   or   run   a   tunnel 
or  drift   to   a   sufficient    depth    therein    to  discover   and   de- 
velop  a    mineral-bearing   vein,    lode,   or   crevice:    should   de- 
termine, if  possible,  the  general  course  of  such  vein  iu  either 
direction   from   the   point   of  discovery,    by   which   direction 
he  will  be  governed  in  marking  the  boundaries  of  his  claim 
on  the  surface.     His  location  notice  should  give  the  course 
and   distance   as   nearly   as    practicable   from   the   discovery 
shaft   on   the  claim   to  some  permanent,    well-known   points 

bjects,  such,  for  instance,  as  stone  monuments,  blazed 
I.  the  confluence  of  streams,  point  of  intersection  of 
well  known  gulches,  ravines,  or  roads,  prominent  buttes. 
hills,  etc..  which  may  be  in  the  immediate  vicinity,  and 
which  will  serve  to  perpetuate  and  fix  the  locus  of  the  claim 
and  render  it  susceptible  of  identification  from  the  descrip- 


382  LAND  OFFICE  RULES. 

tion  thereof  given  in  the  record  of  locations  in  the  district, 
and  should  be  duly  recorded. 

10.  Adjoining    Claims — Staking — Location  Notice. — Tn  ad- 
dition to  the  foregoing  data,  the  claimant  should  state  the 
names  of  adjoining  claims,   or,   if  none  adjoin,   the   relative 
positions  of  the  nearest  claims  ;  should  drive  a  post  or  erect 
a  monument  of  stones  at  each  corner  of  his  surface  ground, 
and    at    the    point   of    discovery    or   discovery    shaft    should 
fix  a  post,  stake,  or  board,  upon  which  should  be  designated 
the  name  of  the   lode,   the  name  or  names   of  the  locators, 
the   number   of  feet   claimed,    and    in   which   direction    from 
the  point  of  discovery;   it  being  essential   that  the  location 
notice  filed  for  record,  in  addition  to  the  foregoing  descrip- 
tion,   should  state  whether   the   entire   claim  of  fifteen    hun- 
dred feet  is  taken  on  one  side  of  the  point  of  discovery,  or 
whether   it   is   partly   upon   one   and   partly   upon  the   other 
side    thereof,    and    in    the    latter    case,    how    many    feet    are 
claimed   upon   each  side  of  such  discovery  point. 

11.  The  location  notice  must  be  filed  for  record  in  all   re- 
spects   as    required    by    the    State    or    Territorial    laws    and 
local   rules  and  regulations,   if  there  be  any. 

12.  Annual    Labor. — In    order    to    hold    the    possessory 
title  to  a  mining  claim   located  prior   to   May    in.    isT'J.  the 
law   requires   that    ten   dollars  shall   be  expended  annually    in 
labor  or  Improvement*  for  each  one  hundred  f<  •  t  in   length 
along  the  vein  or  lode.     In  order  to  hold  the  possessory  right 
to  a    location    made    since    May    10,    1872,    not   less   than   one 
hundred    dollars'    worth    of   labor   must    be    performed    or   im- 
provements   made    thereon    annually.      I'nd.  r    the    pn, visions 
of  the  act   of  Congress  approved  January   22,    1  ^".   the  first 
annual     expenditure    becomes    due    and    must     !»»•    performed 
during  the  calendar  year  succeeding  that  in  which   the  loca 
tion   was  made.      Where   a    number   of   cmi:  i:-uo  is   claims   are 
held    in    common,    the    aggregate    e\|  endinin-    that    would    be 
necessary    to    hold    all    the    claims,    may    he    made    upon    any 
one    claim.       Cornering    locations    are    held    not    to    be    c«n 
tiguous. 

13.  Failure  to  make  the  expenditure  or  perform  the  labor 
required  upon  a   location  made  before  or  since  May    1".   isTi!. 
will    subject    a    claim    to    relocation,    unless    the    original    lo- 
cator,   his    heirs,    assigns    or    legal    representatives    have    re- 
sumed \\ork  after  such  failure  and  before  relocation. 

14.  Annual  expenditure  is  not  required  subsequent  to  entry, 
the  date  of  issuing  the  patent  certificate  being  the  date  con- 
templated by  statute. 

15.  Forfeiture   of   Coowner's  Interest. — I'poii    the    failure 
of  any  one  of  several  coowners  to  contribute  his  proportion 
of  the   required    expenditures,   the   coowners,   who   have   per- 
formed   the   labor    or    made    the    improvements   as    required. 
may,    at    the   expiration    of    the    year,    give    such    delinquent 
eoowner  personal  notice  in  writing,  or  notice  by  publication 
in   the   newspaper   published   nearest   the   claim    for   at    lea  si 
once   a   week    for    ninety   days ;    and    if  upon    the   expiration 
of  ninety  days  after  such  notice  in  writing,   or  upon   the  ex- 


LAND  OFFICE  RULES. 

pirution  «»f  one  hundred  and  eighty  days  after  the  first 
newspaper  publication  of  notice,  the  delinquent  eoowner 
shall  have  failed  to  contribute  his  proportion  to  meet  such 

nditures  or  improvements,  his  interest  in  the  claim 
by  law  passes  to  his  coowners  who  have  made  the  expend- 
itures or  improVv'iuenis  as  aforesaid.  Where  a  claimant 
alleges  ownership  of  a  forfeited  interest  under  the  foregoing 
provision,  the  sworn  statement  of  the  publisher  as  to  the 
fa.ts  of  publication,  giving  date  and  a  printed  copy  of  the 
notice  published,  should  !>••  furnished,  and  f  lie  claimant  must 

:•  that  the  delinquent  coowner  failed  to  contribute  his 
proper  proportion  within  the  period  tix.d  by  the  statute. 

Tf\  ' 

16.  The  effect  of  section  2323.  Revised  Statutes,  is  to  give 
the    proprietor!    of   a   mining    tunnel    run    in    good    faith    the 

->ory  right  to  fifteen  hundred  feet  of  any  blind  lodes 
cut.  discovered,  or  intersected  by  such  tunnel,  which  were 
not  previously  known  to  exist,  within  three  thousand  fee! 
from  the  face  or  point  of  commencement  of  such  tunnel, 
and  to  prohibit  other  parties,  after  the  commencement  of 
the  tunnel,  from  prospecting  for  and  making  locations  of 
and  within  said  distance  of  three 

thousand  feet,  unless  such  lodes  appear  upon  the  surface 
or  w.  re  previously  known  to  exist.  The  term 
•ised  in  isid  section.  Is  construed  and  held  to  mean  the  first 
working  face  formed  in  the  tunnel,  and  to  signify  the  point 
at  which  the  turriel  actually  enters  cover;  it  being  from 
this  point  that  the  three  thousand  feet  are  to  be  counted 
upon  which  prospecting  is  prohibited  as  aforesaid. 

17.  Tunnel    Notice — Staking. — To    avail    themselves    of 
the    benefits    of    this    provision    of   law.    the    proprietors    of    :i 
mining  tunnel   will  be   requhed.  at    the  time  i  hey   enter  cover 

:oresaid.  to  give  proper  notice  of  their  tunnel  location 
by  erect  in-  a  substantial  ;<l.  or  monument  at  the 

face  or  point  of  commencement  thereof,  upon  which  should 
be  posted  a  good  and  sutlicicnt  notice,  giving  the  names  of 
the  pa  ities  or  company  claiming  the  tunnel  right:  the  actual 
or  proposed  course  or  direction  of  the  tunnel  ;  the  height 
and  width  thereof,  and  the  course  and  distance  from  such 

or  point  of  commencement  to  some  permanent  well- 
known  objects  in  the  vicinity  by  which  to  fix  and  determine 
the  locus  in  mann»r  heretofore  set  forth  applicable  to  loca- 
tions of  veins  or  lodes,  and  at  the  time  of  posting  such 
notice  they  shall,  in  order  that  miners  or  prospectors  may 
be  enabled  to  determine  whether  or  not  they  are  within 
the  lines  of  the  tunnel,  establish  the  boundary  lines  thereof. 

akes  or  monuments  placed  along  such  lines  at  proper 
intervals,  to  the  terminus  of  the  three  thousand  feet  from 
the  fact'  or  point  of  commencement  of  the  tunnel,  and  the 
lines  so  marked  will  define  and  govern  as  to  the  specific 
boundaries  within  which  prospecting  for  lodes  not  previously 
known  to  exist  is  prohibited  while  work  <>n  the  tunnel  is 
being  prosecuted  with  reasonable  diligence. 


384  LAND  OFFICE  RULTCS. 

18.  Record    of    Tunnel. — A    full    and    correct    copy    of 
such   notice   of    location    defining   the   tunnel    claim    must    be 
filed  for  record  with  the  mining  recorder  of  the  district,   to 
which    notice    must    be    attached    the    sworn    statement    or 
declaration  of  the  owners,  claimants,  or  projectors   of  such 
tunnel,    setting    forth   'the    facts    in    the    case;    stating    the 
amount   expended    by    themselves    and    tbeir   predecessors    in 
interest    in    prosecuting    work    thereon;    the    extent     of    the 
work    performed,    and   that    it    Is    bona    fide    their    intention 
to  prosecute   work   on   the   tunnel   so   located   and   described 
with   reasonable  diligence  for  the   development  of  a   vein    or 
lode,   or   for   the   discovery   of   mines,  or    both,    as   the 

may  lie.  This  notice  of  location  must  be  duly  recorded. 
and,  with  the  said  sworn  statement  attached,  kept  ,,n  the 
recorder's  files  for  future  reference. 

IT. ACER    CLAIMS.* 

19.  But  one  discovery  of  mineral  is  required  to  support  a 
.  placer  location,    whether  it   be  of  twenty   acres   by  an    iudi 

virtual,  or  of  one  hundred  and  sixty  acres  or  less  i.\  an 
association  of  persons. 

20.  Building  Stone — School  Lands The  act  of  Augi1 

is'.tL'.    extends    the    mineral  land    laws    SO    as    to    lu-iiiir    lands 
chirtly    valuable   for   building   stone   within    the    provisions    «>f 
said   law   l.y  authorising  a    placer  entry  of  such    lands.      Ro- 
isters and  receivers   should  make  a   refer*  id   Ad    «m 
the   entry    papers    in    the   case   of   all    placer    entries    made-  for 
lands  containing  stone  chiefly  valuable  for  building  puri" 
Lands    reserved    for    the   hen. -fit    of   public    schools   or    d<>i 

to  any   State  are  not  subject  to  entry  under  said  act. 

21.  Petroleum— Oils The    act    of    February    11.     I8fl7, 

provides    f«.r    the   location   and   entry   of   public  lands    chiefly 
valuable    for    petroleum    or    other    mineral    oils,    an  1    entries 
of    that    nature    made   prior    to    the    passage    of   said    act    are 
to  be  considered  as  though  made  tluVeunder. 

22.  Ten-acre    Tracts.— liy     section     I'.",::"     :n:t  hm-it.. 
given  for  subdividing   t<-rt\  acre   legal    subdivisions   into 
acre  tracts.      These  ten  aere   tracts  should   lie  considered  and 
dealt  with   as  legal  subdivisions,   and  an  applicant    havi: 
placer   claim    which    conforms    to    one    or    more    of    such    ten 
acre   tracts,   contiguous  in  case   of  two   or    mor.-   tracts.    M;I\ 
make    entry    thereof    after    the    usual    proceedings,    without 
further  survey  or  plat. 

23.  Must    be    in    Square    Form — In    subdividing    forty- 
acre     legal     subdivisions,     the     t«n-a<re     tracts     must     :„.     in 
square    form,    with    lines    at    right    angles    with    the    lin  — 
the    public    surveys:    and    the    notice    given    of    the    applica- 
tion  must   be  specific  and  accurate  in   description. 

24.  How    Described — Improvements — A     ten  acre    subdi- 
vision   may    be   described,    for    instance,    if    situated    in    the 
extreme    northeast    of    the    section,    as    the    "NK.    J4    of    the 


*See,  also,   Regulations  58-60. 


l.AXI>  OFFICE   KfLES.  385 

'•4    of    the    NK.    V'    of    the    section.    <>r,    in    like    manner. 
tuated  :    l»ui.    in  -  addition 

to    this   description.    iir.   notice-   innsi    i:ive  all    the  other   data 

ired    in   a    minci-il    application,    hy   which    parties    may    he 

pui    on    inquiry   as    to    Mir   land   Bought    to    he   patented.     'The 

pf""  iJh    applications    nnist     show    clearly    the 

!    of    tin*    improvements    upon    tlu1    prem 

ises. 

25.  The  proof  of  improvements  must  show  their  value  to 

.  >iil>-t<l  ilnllars   and    that    tlu\v    were 

made    by    the    appli.aMt     Tor    patent     or    hN    franton.      This 

proof   -li'mld   consist    ol    the   aflidavit    of   two    or   more   clisin- 

The   annual    expenditure    To    the    amount 

of   $li'ii.    r.  quired    !.y    section    2324,     K.-vis.-«l    Statutes,    must 
I  »•   made   upon    plarrr   .-Inin-s    as   \v»>ll    ns    lode   claims. 

26.  Lode  in  Placer.-   Applicants  for  patent  to  a  plncer 
Hah.  of  a    known    vein   or   lode 
included    therein,    m                        in    their    application    that     the 

The  published   and  posted 

noti  \9o  iiuludt-  such  statement.     If  veins  or  lodes 

•  •fl  by  other  parties. 

fact    sh.iiii.i  idly   stated   in   the"  application   for 

pMii-ni.   and   in   all   the  n,.ii,,s       Hut  in  all   <-as.-s.   whether   the 

lod.-  is   elf  •!.   it    must    he  surveyed  and   m.1 

upon     tin-    |>lat.  I     and     plat«ffiTUIf    the    a  real    of 

.••lie   claim    i. r    claims    and    the    area    of    the    placer    sepa- 

;ion    wliiHi    omits    to    claim    such    known 

vein   or   lode   n  d   as  a   conclusive  declaration 

that    the   applicant    has   no   riuht    of  possession  to  the  vein   or 

n  lode  or  v.  in.   tin-  fact  must 
appear   by    the   atlida\  •   or  more  witnesses. 

27.  Size  of  Claim.       T.y   |  'are.l  that 
no  location  of  a   pla                      made  after  July  9.  1870.  shall 

-    i  -1    .my   one  person   or 
ns.   which   location  shall  conform   to  the 
1  "ni ' 

28.  Conform   to    Public   Survey. — Section    •_'.",:;!    provides 
that     all    placer  mining    claim  I     located    after    May     H».     1872. 
shall     <-on:  l-racticahle     with     the     I'nited 

stem    of    public-land    surveys    and    the    rectangular 

!i    surveys,    and    such    locations    shall    not 

include  mure  than  twenty  .-ach  individual  claimant. 

29.  Location    by    an    Association. — The    foregoing    pro- 
visions of  law  are  construed  to  mean  that  after  the  9th  day 
of  .inly.   IN?",  no  location  of  a  placer  claim  can  be  made  to 

d  one  hundred  and  sixty   acres,   whatever   may   he   the 

numher    of    locators    associated    together,    or    whatever    the 

local   regulations  of  the  district  may  allow;  and  that    from 

and  after  May  10.  1872,  no  location  can  exceed  twenty  acres 

Individual  participating  therein;  that  is,  a  location 

o  persons  -an  not  exceed  forty  acres,  and  one  by  three 
persons  can  not  <'\<-eed  sixty  acres. 

30.  How  Located. — The  regulations  hereinbefore  given 
the   manner  of  marking  locations  on  the  ground,   and 

13 


386  LAND  OFFICE  RULES. 

placing  the  same  on  record,  must  be  observed  in  the  case  of 
placer  locations  so  far  as  the  same  are  applicable,  the  law 
requiring,  however,  that  all  placer  mining  claims  located 
after  May  10,  1872,  shall  conform  as  near  as  practicable 
with  the  United  States  system  of  public  land  surveys  and 
the  rectangular  subdivisions  of  such  surveys,  whether  the 
locations  are  upon  surveyed  or  unsurveyed  lands. 

REGULATIONS    UNDER    SALlNE    ACT. 

31.  Only  One  Location   Allowed  to  Same  Person. — Tinder 
the   act   approved   January  31,    1901,   extending   the   mining 
la\\s   to  saline   lands,    the  provisions   of  the   law   relating   to 
placer-mining   claims  are  extended  to  all   States   and   Terri 
tories  and  the  district  of  Alaska,  so  as  to  permit  the  loca- 
tion and   purchase  thereunder  of  all  unoccupied  public  lands 
containing  salt    springs,   or  deposits  of  salt    in   any   form,   and 
chiefly    valuable   therefor,   with  the  proviso,    "That    the   same 
l»ei  son  shall  not  locate  or  enter  more  than  one  claim   here- 
nnder." 

32.  Rights    obtained   by    location    under    the    placer-mining 
laws    are   assignable,    and    the   assignee   may    make    the    entry 
in    his   own    name:   so.    under   this  act   a   person   holdin 
assignee    mav    make    entry    in    his    own    name:    /Vor/</r</.    II. 
has   not    held    under  this  act,   at   any  time,    either   as   locator 
or    entryman.    any    other    lands:    his    right    is    exhausted    by 
having    held    under    this    act    any    particular   tract,    either    as 
locator  or   entryman.    either   as   an    individual    or  as   a   mem 
ber    of    an    association        It    follows,    therefore,    th.it     n«.    ap- 
plication  for    patent   or   entry,    made    under    this    act,    shall 
i-inl, race   more   than   one   single   location. 

33.  Affidavit  to  Location  Certificate — Tn  order  that   the 
conditions  imposed   by   the  proviso,  as  set  forth   in   the  above 
paragraph,     may     duly     appear,     the    notice    of    location     pre 
sented    for    record   and   the  application    for   patent  must   each 
contain   a  specific  statement  under  oath  by  each  person  whOM 
name  appears    therein    that   he  never   has.'   either   as    an    indi- 
vidual  or  as  a   member  of  an  association,  located  or  entered 
any   other   lands   under  the  provisions   of   this   act.      Assign 
me'nts   made   by  persons  who  are  not  severally  qualified   as 
herein  stated  will  not  be  recognized. 

PROCEDURE  TO  OBTAIN  PATENT  TO  MINERAL  LANDS 

LODE     CLAIMS. 

34.  Official  Survey. — The  claimant  is   required,   in   the 
first  place,  to  have  a  correct  survey  of  his  claim  made  under 
authority  of  the  surveyor-general  of  the  State  or  Territory 
in  which  the  claim  lies,  such  survey  to  show  with  accuracy 
the  exterior  surface   boundaries  of  the  claim,  which   bound 
aries  are  required  to  be  distinctly  marked  by  monuments  on 
the   ground.      Four  plats  and   one  copy   of  the  original   field 
notes  in  each  case  will  be  prepared  by  the  surveyor  general  ; 
one  plat  and  the  original   field  notes  to  be  retained  in   the 
office   of    the   surveyor-general,   one   copy    of   the   plat   to   be 


LAND  OFFICE  RULES.  387 

given  the  claimant  for  posting  upon  the  claim,  one  plat  and 
<py  of  the  field  notes  to  be  given  the  claimant  for  filing 
with  the  i>roi»«>i  register,  to  be  finally  transmitted  by  that 
officer,  with  other  papers  in  the  case,  to  this  office,  and  one 
plat  to  be  sent  by  the  •urreyor-general  to  the  register  or 
the  proper  laud  district,  to  be  retained  on  his  files  for  fu tu re 
reference.  As  there  is  no  resident  surveyor-general  for  the 

of  Arkansas,  applications  for  the  survey  of  mineral 
claims  in  said  State  should  be  made  to  the  Commissioner  of 
this  office,  who.  mid-  r  the  law.  is  ex  offlclo  the  I".  S. 

or-general. 

35.  Idem — None    Before    Record The    survey    ami    plat 

of   mineral    claims    r.  quired    to    he    filed    in    the    proper    land 
office    with   application    for    patent    must    be   made   subsequent 
to  the  recording  of  the  loi-.-ition   of  the  claim    (if  the  laws  of 
tin-   Staff  or  Territory  or   the  regulations  of  the  mining  dis- 
triet     require    the    notice    of    location    to    be    recorded),    and 
when    the    original    location    is    made    by    survey    of   a    Tinted 
States    mineral     surveyor    such     location    survey    can    not     be 

ituted    for     that"  required     by     the     statute,     as     above 
imli. 

36.  Numbering  'Surveys — Tiei    to    Government    Corners — 
The  surveyors-general  should  designate  "nil  surveyed  mineral 
.•laims   by   a   progressive  series' of  numbers,    beginning   with 
survey  No.  37,  Irrespective  as  to  \\h.ih,r  they  are  situated 
on   surveyed  or   unsurveyed    lands,    the   claim    to   be  so  desig- 
nated   at    d  -uing    tl rder    therefor,   in  addition   to 

the   local   designation   of   the   claim  :    it    being  requir.-d    in    all 

that  th«-  pint  and  field  notes  of  the  survey  of  a  claim 
must,  in  addition  to  the  reference  to  permanent  objects 
in  the  neighborhood,  d,  scribe  tin-  locus  of  the  claim  with 
to  the  lines  of  public  surveys  by  a  line  connect- 
ing a  corner  of  the  claim  with  the  nearest'  public  corner  of 
tcs  surveys,  unless  sin-h  claim  be  on  unsur- 
veyed lands  at  a  distance  of  more  than  two  miles  from  such 
public  corner,  in  \\hich  latter  case  It  should  be  connected 
with  a  1'nited  States  mineral  monument.  Such  conn*- 
line  must  not  be  more  than  t«  •,  Mttei  in  length,  and  should 
be  measured  on  the  ground  direct  between  the  points,  or 
Calculated  from  actually  surveyed  traverse  lines  if  the  na 
nire  of  the  country  should  DOJ  permit  direet  measurement . 
If  a  regularly  established  survey  corner  is  within  two  miles 
of  a  claim  situated  on  unsurveycd  lands,  the  connection 
should  be  made  with  such  <  orner  in  preference  to  a  connec- 
tion with  a  !'i  i  mineral  monument.  The  connect- 
ing line  or  traverse  line  must  be  surveyed  by  the  mineral 
surveyor  at  the  time  of  his  making  the  particular  survey, 
and  be  made  a  part  thereof. 

37.  (a)     Promptly  upon   the  approval  of  a  mineral  survey 
the    surveyor-general    will    advise    both    this    office    and    the 
appropriate  local   land  office,  by  letter    (Form   4-280),  of   tin- 
date   of   approval,   number  of  the   surviy.    name  and  area    of 
the   claim,   name   and   survey   number  of  each   approved   min- 
eral   survey    with    which    actually    in    conflict,    name   and    ad- 
dress of  the  applicant  for  survey,  and  name  of  the  mineral 


388  LAND  OFFICE  RULES. 

surveyor  who  made  the  survey;  and  will  also  briefly  de- 
scribe therein  the  locus  of  the  claim,  specifying  each  legal 
subdivision  or  portion  thereof,  when  upon  surveyed  lands, 
covered  in  whole  or  in  part  by  the  survey ;  but  hereafter 
no  segregation  of  any  such  claim  upon  the  official  township- 
survey  records  will  be  made  until  mineral  entry  has  been 
made  and  approved  for  patent,  unless  otherwise  directed  by 
this  office. 

(b)*  Upon  application  to  make  agricultural  entry 
of  the  residue  of  any  original  lot  or  legal  subdivision  of 
forty  acres,  reduced  by  mining  claims  for  which  patent  ap 
plications  have  been  filed  and  which  residue  has  been  already 
relotted  in  accordance  therewith,  the  l&cal  officers  will  ac- 
cept  and  approve  the  application  as  usual,  if  found  to  be 
regular.  When  such  an  application  is  filed  for  any  such 
original  lot  or  subdivision,  reduced  in  available  area  l>y  duly 
asserted  mining  claims  but  not  yet  relotted  accordingly,  tM 
local  officers  will  promptly  advise  this  office  thereof;  ariYl 
will  also  report  and  identify  any  pending  application  for 
mineral  patent,  affecting  such  subdivision,  which  the  agri- 
cultural applicant  does  not  desire  to  contest.  The  surveyor- 
genoral  will  thereupon  be  advised  by  this  office  of  such 
mining  claims,  or  portions  thereof,  as  are  proper  to  be 
segregated  and  directed  to  at  once  prepare,  upon  the  usual 
drawing-paper  township  blank,  diagram  of  amended  township 
survey  or  such  original  lot  or  legal  forty-acre  subdivision  so 
made  fractional  by  such  mineral  segregation,  designating  the 
agricultural  portion  by  appropriate  Tot  number,  beginning 
with  No.  1  in  each  section  apd  giving  the  area  of  each  lot. 
and  will  forthwith  transmit  one  approved  copy  to  the  local 
land  office  and  one  to  this  office.  In  the  meantime  the  local 
officers  will  accept  the  agricultural  application  (if  no  other 
objection  appears),  suspend  it  with  KS.  rvaiion  of  all  rights 
of  the  applicant  if  continuously  asserted  by  him,  and  upon 
receipt  of  amended  township  diagram  will  approve  th%  appli- 
ration  (if  then  otherwise  satisfactory)  as  of  the  date  of 
lilini:.  corrected  to  describe  the  tract  as  designated  in  the 
amended  survey. 

(c)  The  register  and  receiver  will  allow  no  agricul- 
tural claim  for  any  portion  of  an  original  lot  or  legal  forty- 
acre  subdivision,  where  the  reduced  area  Is  made  to  appear 
by  reason  of  approved  survevs  of  mining  claims  and  for 
which  applications  for  patent  nave  not  been  filed,  until  there 
is  submitted  by  such  agricultural  applicant  a  satisfactory 
showing  that  such  surveyed  claims  are  in  fact  mineral  in 
character ;  and  applications  to  have  lands  asserted  to  be 
mineral,  or  mining  locations,  segregated  by  survey,  with  the 
view  to  agricultural  appropriation  of  the  remainder,  will  he 
made  to  the  register  and  receiver  for  submission  to  the 
Commissioner  of  the  General  Land  Office,  for  his  considera- 
tion and  direction,  and  must  be  supported  by  the  affidavit 
of  the  party  in  interest,  duly  corroborated  by  two  or  more 
disinterested  persons,  or  by  such  other  or  further  evidence 
as  may  be  required  in  any  case,  that  the  lands  sought  to  be 
segregated  as  mineral  are  in  fact  mineral  in  character : 
otherwise,  in  the  absence  of  satisfactory  showing  in  any 


LAND  OFFICE  RULES.  ;M> 

such  case,  such  original  lot  or  legal  subdivision  will  be  sub- 
to  agricultural  appropriation  only.  When  any  such 
showing  shall  be  found  to  be  satisfactory  and  the  necessary 
survey  is  had,  amended  township  diagram  will  be  required 
and  made  as  prescribed  in  the  preceding  section. 

38.  The   following   particulars   should   be   observed   in   the 
survey   of  every  mining   claim  : 

•  1  i  The  exterior  boundaries  of  the  claim,  the  num- 
ber of  feet  claimed  along  the  vein,  and,  as  nearly  as  can  be 
;ained.  the  direction  of  the  vein,  and  the  number  of 
feet  claimed  on  the  vein  in  each  direction  from  the  point 
of  discovery  or  other  well-defined  place  on  the  claim  should 
be  represented  on  the  plat  of  survey  and  In  the  field  n 

(2)  The    intersection    of    the    lines    of    the    survey 
with   the  lines  of  conflicting  prior  surveys  should  be  noted 
in   the  iie!d   notes  and   represented  upon   the  plat. 

(3)  Conflict*     with     unsurveyrd     claims,     where     the 
applicant    for    survey    does    not    claim    th«'    area    in    conilict. 
sin  iild    ln>    shown    l>y    actual    BOJ 

(4)  The  total  area  of  the  claim  embraced  by  the  ex- 
:    boundaries  should  be  stated,  and  also  tfce  area  in  con- 

tlict   with  each  int.  is. ,  ting  survey,  substantially  as  follows: 

«  Acres. 

Total   area   of   claim 10.50 

Area  in  conflict  with  Survey  No.  302..     1.56 

in  conflict   with    Survey    \  2.33 

Area    in    conflict    with    Mountain    Maid 

lode  mining  claim,   unsurveyed Ms 

It  dors  not  follow  that  because  mining  surveys  are  required 
to  exhibit  all  conflict!  with  prior  surveys  the  areas  of  con 
Mi.  t  are  to  be  excluded.  The  field  notes  and  plat  an-  made 
a  pan  of  the  application  for  patent,  and  care  should  !••• 
taken  that  th«>  description  does  not  Inadvertent!/  exclude 
portions  intended  to  be  retained.  The  application  for  patent 
•tumid  stair  the  portions  to  be  excluded  in  express  terms. 

39.  The  claimant   is  then  required  to  post  a  copy  of  the 
plat  of  such  survey  in  a  conspicuous  place  upon  the  claim, 
together  with   notice  of  his  intention  to  apply  for  a  patent 
therefor,    which    notice   will   give   the   date   of   posting,    the 
name   of   the   claimant,   the  name  of  the  claim,   the  number 
of    tiir    surv.-y.    the    mining    district    and    county,    and    the 
names  of  adjoining  and  conflicting  claims  as  shown  by  the 
plat   of  survey.     Too  much  care  can  not  be  exercised  in  the 
preparation  of  this  notice,  inasmuch  as  the  data  therein  are 

repeated  in  the  other  notices  required  by  the  statute, 
and  upon  the  accuracy  and  completeness  of  these  notices 
will  depend,  in  a  great  measure,  the  regularity  and  validity 
of  the  proceedings  for  patent. 

40.  Proof  of  Posting — After  posting  the  said  plat  and 
•     upon    the   premises,   the   claimant   will   file   with    the 

proper  register  and  receiver  a  copy  of  such  plat  and  the 
field  notes  of'survey  of  the  claim,  accompanied  by  th'e  affi- 
davit of  at  least  two  credible  witnesses  that  such  plat  and 
notice  are  posted  conspicuously  upon  the  claim,  giving  the 


390  LAND  OFFICE  RULES. 

date   and   place   of   such    posting ;   a   copy   of   the   notice  so 
posted  to  be  attached  to  and  form  a  part  of  said  affidavit. 

41.  Application    for    Patent. — Accompanying    the    field 
notes  so  filed  must  be  the  sworn  statement  of  the  claimant 
that   he   has   the    possessory  right   to   the   premises    therein 
described,  in  virtue  of  a  compliance  by  himself   (and  by  his 
grantors,  if  he  claims  by  purchase)   with  the  mining  rules, 
regulations,   and   customs  of   the   mining  district,    State,   or 
Territory  in  which  the  claim  lies,  and  with  the  mining  laws 
of   Congress ;  such   sworn   statement  to   narrate  briefly,   but 
as   clearly   as   possible,   the   facts  constituting   such   compli 
ance»  the  origin  of  his  possession,  and  the  basis  of  his  claim 
to  a   patent. 

42.  Abstract  of  Title — This  sworn"  statement  must  be 
supported  by  a  copy  of  the  location  notice,  certified  by   th<v 
officer  in  charge  of  the  records  where  the  same  is  recorded, 
and    where    the    applicant    for    patent    claims    the    interests 
of   others   associated   with    him   in   making   the    location,    or 
as    a    purchaser,    in    addition    to    the    copy    of    the    location 
notice,   must   be   furnished   a   complete   abstract   of   title   as 
shown   by   the  record   in   the  office  where   the  transfers   are 
by    law    required   to  be  recorded,   certified   to   by   the  officer 
in  charge  of  the  record  under  his  official  seal.     The  officer 
should   also  certify   that  no  conveyances   affecting  the   title 
to  the  claim  in  question  appear  of  record  other  than  those 
set  forth   in   the  abstract,    which   abstract  shall   be  brought 
down  to  the  date  of  the  application  for  patent.     Wlu-n-  the 
applicant    claims   as   sole   locator   and   does    not    furnish    an 
abstract   of   title,    his    affidavit   should    be   furnished   to    the 
effect  that  he  has  disposed  of  no  interest  In  the  land  located. 

43.  Lost  Records.— In  the  event  of  the  mining  records 
in    any    case    having    been    destroyed    by    fire    or    otherwise 
lost,  affidavit  of  the  fact  should  be  made,  and  secondary  evi- 
dence of  possessory  title   will   be  received,   which  may   con- 
sist of  the  affidavit  of  the  claimant,  supported  by  those  of 
any    other    parties    cognizant    of    the    facts    relative    to    his 
location,    occupancy,   possession,   improvements,    &c.  :   and    in 
such  case  of  lost  records,  any  deeds,  certificates  of  location 
«>r    purchase,    or  other   evidence  which    may    lit-   in    ilu    claim- 
ant's  possession   and  tend   to  establish  his  claim,  should  be 

tiled. 

44.  Two  Applications  for  Same  Land. — Before  receiving 
and    lilinir    an    application    f<»r    mineral    patent,    local    officers 
will   he   particular   to  see   that   it  includes  no   land  which   is 
embraced    in   a   prior   or  pending   application   for   patent   or 
entry,  or  for  any  lands  embraced  in  a  railroad  selection,  or 
for  which  publication  is  pending  or  has  been  made  by  any 
other  claimants,  and  If,  in  their  opinion,  after  investigation, 
it  should  appear  that  a  mineral  application  should  not.   for 
these   or   other  reasons,    be  accepted  and   filed,  they  should 
formally   reject  the  same,  giving  the   reasons  therefor,   and 
allow    the    applicant    thirty    days    for    appeal    to    this    office 
under  the  Rules  of  Practice. 


I. AND  OFFICE  RTT.ES.  .         :)!»! 

Mineral  Location  on  Railroad  Grants. 

I. oral  oflicers  will  give  prompt  and  appropriate  no 
tice  to  the  railroad  grantee  of  the  filing  of  every  application 
for  mineral  patent  which  (>inbrnce8  any  portion  of  an  odd- 
anmbered  section  of  surveyed  lands  within  the  primary  lim- 
its of  a  railroad  land  irrant.  and  of  every  such  application 
embracing  «»/»/  portion  of  unsurveyed  lands  within  such  lim- 
its ••  to  any  such  application  which  embraces  a 
portion  or  portions  of  those  ascertained  or  prospective  odd- 
numbered  sections  only,  within  the  limits  of  the  grant  in 
Montana  and  Idaho  to  the  Northern  Pacific  Railroad  Coin 
pany.  which  have  been  classified  as  mineral  under  the  act 
of  February  •_'•;.  1  s:»r,.  without  protest  hy  the  company 
within  the  time  limited  l>y  the  statute  or  the  mineral  class- 
ification whereof  has  been  approved). 

Should    the    railroad    grantee    tile    protest     and    apply 
for    a    h.-arinir    to    determine    the    character    of    the    land    in' 
volved    in    any   such   application   for  mineral   patent,    proceed 
hereiinder    will    he    had    in    the    usual    manner 

Any  application  for  mineral  patent,  however,  which 
emhraces  lands  previously  li-  .ted  hy  a  railroad 

company  will  he  disposed  of  as  provided  by  the  first  sec- 
tion of  this  paragraph,  ami  the  applicant  afforded  oppor- 
tunity to  protest  and  apply  for  a  hearing  or  to  appeal. 

Notice  should   he   irivli    to  the  duly   authori/ed    repre- 
live    <.f    th*>    railroad  m    accordance    with    Kule 

1.7  of  Practice.  When  the  claims  applied  for  are  upon  mi 
surveyed  land,  the  hurden  of  proving  that  they  are  situate 
within  prospective  odd-numbered  sections  will  rest  upon  the 
railroad. 

l.vidence  of  service  of  notice  should  be  filed  with 
the  record  in  each  case. 

45.  Publication — Publisher's    Agreement I'pon    the     f 

ceipt   of  these  papers,  if  no  reason  appears  for  rejecting  the 
application,  th<  will,  at  the  expense  of  the  claimant 

•  who    must     furnish    the   am  cement    of    the    publisher   to   hold 
applicant    for    patent    alone    responsible   for   charges   of   pub- 
lication i.   publish   a   notice  of  such  application  for  the  period 
of  sixty  days  in  a  newspaper  published  nearest  to  the  claim, 
and    will    post  a   copy    of   such   notice   in   his   office   for   the 
same    period.      When    the   notice    is    published   in    a    trrr/./v 
newspaper,   nine  consecutive  insertions  are  necessary;  when 
in  a   iiiiiii/  newspaper,  the  notice  must  appear  in  each  issue 
for    sixty  one    consecutive    issues.      In    both    cases    the    first 
day   of   issue   must    he  excluded  in  estimating  the  period  of 
Mxty    days. 

46.  The  notices  so  published  and  posted  must  embrace  all 
the    data    given    in   the   notice   posted   upon   the   claim.      In 
addition    to   such    data    the    published    notice    must    further 
indicate    the    locus   of   the   claim    by    giving   the   connecting 
line,  as  shown  by  the  field  notes  and  plat,  between  a  corner 
of   the  claim   and   a    United  States  mineral   monument   or   a 
<  orner   of   the   public   survey,   and   thence    the   boundaries   of 
the  claim    by   courses   and  distances. 


392  LAND  OFFICE  RULES 

47.  The  register  shall  publish  the  notice  of  application  for 
patent  in  a  paper  of  established  character  and  general  cir- 
culation,  to   be   by   him   designated  as  being  the   newspaper 
published  nearest  the  land. 

48.  Surveyor-General's  Certificate  of  $500  Improvements. — 
The  claimant  at  the  time  of  filing  the  application  for  patent, 
or  at  any  time  within  the  sixty  days  of  publication,  is  re- 
quired to  file  with  the  register,  a  certificate  of  the  surveyor- 
general    that   not   less   than   five   hundred   dollars'   worth   of 
labo~r  has  been  expended  or  improvements  made,  by  the  ap- 
plicant or  his  grantors,  upon  each  location  embraced  in  the 
application,   or   if  the  application  embraces  several   contimi 
ous  locations  held  in  common,   that    an  amount  equal   t<>  live 
hundred    dollars    for    each    location,    has    been    so    expended 
upon,  and  for  the  benefit  of,  the  entire  group;  that  the  plat 
filed  by  the  claimant  is  correct;  that  the  field  notes  of  tin- 
survey,  as  filed,  furnish  su«-h  an   a  ecu  rat*'  description  of   tin- 
claim    as   will    if    incorporated    in    a    patent    serve    to    fully 
identify    the    premises    and     that    such     r-'iVn-nrr     is     made 
therein  to  natural   objects  or  permanent  monuments  as   will 
perpetuate  and  fix  the  locus  thereof:   Pmriihti.  That    a-    to 
all    applications   for   patent   made   and   passed    t<>   entry    in- 
fore    July    1,     1898,    or    which     arc    by     prmcsts     or    a«h 
claims    prevented   from    being  passed    to    entry    before    that 

"time,  where  the  application  embraces  several  locations  held 
in  common,  proof  of  an  expenditure  of  five  hundred  dollars 
upon  the  group  will  be  sufficient  and  an  expenditure  of 
that  amount  need  not  be  shown  to  have  been  made  upon, 
or  r<-r  the  bej  eiit  «>f.  each  location  embraced  in  the  appli 
cation. 

49.  The  surveyor-general  may  derive  his  information  upon 
which   to  base  his   certificate   as   to  the  value   of  labor 
pended   or    improvements   made   from    the   mineral    surveyor 
who    makes    the    actual    survey    and    examination    upon    tin- 
premises,    and    such    mineral    surveyor    should    specify    with 
particularity  and  full-  detail  the  character  and  extent  of  such 
improvements,    but   further    or    other    evidence    may    be    re- 
quired in  any  case. 

50.  It    will    be    convenient    to    have    this    certificate    in- 
dorsed   by    the    surveyor-general,    both    upon    the    pl.it     and 
field  notes  of  survey  filed  by  the  claimant  as  aforesaid. 

51.  Proof  of  Publication  and  of  Plat  Remaining  Posted. — 
After  the  sixty   days'   period   of  newspaper   publication   has 
expired,   the   claimant   will    furnish   from    the   office   of   pub 
lication   a    sworn  statement   that    the   notice   was   published 
for   the   statutory   period,   giving   the   first   and   last   day   of 
such    publication,    and    his    own    affidavit   showing   that   the 
plat    and    notice    aforesaid    remained    conspicuously    posted 
upon  the  claim  sought  to  be  patented  during  said  sixty  days' 
publication,  giving  the  dates.   ' 

62.  Entry — Price— Proof  of  Sums  Paid. — Upon  the  filing 
of  this  affidavit  the  register  will,  if  no  adverse  claim  was 
filed  in  his  office  during  the  period  of  publication  and  no 
other  objection  appears,  permit  the  claimant  to  pay  for 


LAND  OFFICE  RULES.  393 

the   land   to  which  he  is  entitled  at  the  rate  of  five   dollars 

for    each   acre   and   five   dollars   for   each    fractional    part    of 

an  acre,  except  as   otherwise   provided    by   law.   the  receiver 

i!g   tin-    usual    duplicate    receipt    therefor.      The   claimant 

will   also  make  n   sworn   statement  of  all   charges   and  fees 

paid  by  him   for  publication   and  surveys,  together  with  all 

fees  and  money   paid   the  register  and  receiver  of  the   land 

after    which    tin-    complete    record    will    be   forward*-.! 

to    the    Commissioner    of    tin-    <;<i,ual    Land    Office    and    a 

lien-oil    if   found   legular. 

53.  Protest  Prior  to  Patent. — At  any  time  prior  to  the 
of  patent,  protest  may  be  filed  against  the  patent- 
ing of  the  claim  as  applied  for,  upon  any  ground  tending  to 
show  that  the  applicant  has  failed  to  comply  with  the  law 
in  any  matter  essential  to  a  valid  entry  under  the  patent 
proceedings  Such  prot«  .  bowefer,  i>e  made  the 

in. ;  us    of    pi's-iving   a    surface    conflict    lost    by    failure    to 
adverse     or     lost     l»y     th«-     judgment     of    the    court    in     an 
adv.isc    sr.it.      (Hie    holding    a    pre.^-nt    joint    interest    in    a 
ininer-il   location   in. -hided   in  an  application  for  patent   who 
..•hided    fn.in    the   appl i.-ni'  n.   so  that  his  interest    would 
not    l>e    pn.tect"d    I'.v    th-    issue    of    patent    thereon,    may    pro- 
.• -gal  nst   the  issuance  of  a  patent  as  applied  for,  setting 
in    such    pr.-t.st    the   nature  and   extent    of  his   interest 
in   Mieh    loe.-nion.   and    Mich   a   protestant   will   be  deemed  a 
!    to   app.al.      This    results    from    the 

holding   that   a   coowner    excluded  from    au    application    for 
nt  does  not  have  an  "adverse"  claim  within  the  mean- 
ing   of    sections    2325    and    2326    of    the    Revised    Statutes, 
sawyer,  150  U.  8.  578-586. 

64.  Any  party  applying  for  patent  as  trustee  must  disclose 
fully  the  nature  of  the  trust  and  the  name  of  the  rcntui  </'" 

!   such   trustee,  as  well   as  the  beneficiaries,   must 
furnish   satisfactory  proof  of  citizenship;  and  the  names  of 
beneficiaries,    as  well    as    that    of   the   trustee,   must    be    in- 
of  entry. 

65.  The  annual  expenditure  of  one  hundred  dollars  in  labor 
or  improvements  on  a  mining  claim,  required  by  section  2324 
of  the  Revised  Statutes,  is  solely  a  matter  between  rival  or 

rse  claimants  to  the  same  mineral  land,  and  goes  only 
to  the  right  of  possession,  the  determination  of  which  is 
Committed  exclusively  to  the  courts. 

56.  Failure   to  Prosecute  Application  Diligently The  fail- 
ure of  an  applicant  for  patent  to  a  mining  claim  to  prose- 
cute  his   application   to   completion,   hy    filing   the  necessary 
proofs  and   making   payment  for  the  land,  within   a   reason 
able  time  after  the  expiration  of  the  period  of  publication  of 
notice  of  the  application,  or  after  the  termination  of  adverse 
proo                      ihe  courts,  constitutes   a   waiver  by  the  ap- 
plicant   of    all    riirhts    obtained    by    the    earlier    proceedings 
upon    the   application. 

57.  Idem— Prosecution  Delayed  by  Adverse — The  proceed- 
ings necessary  to  the  completion  of  an  application  for  patent 
to  a  mining  claim,  against  which  an  adverse  claim  or  pro- 


394  LAND  OFFICE  RULES. 

test   has   been   filed,    if   taken   by   the   applicant    at   the   first 
opportunity    afforded    therefor    under    the    law    and    depart 
mental  practice,  will  be  as  effective  as  if  taken  at  the  date 
when,  but  for  the  adverse  claim  or  protest,  the  proceedings 
on   the  application  could  have  been  completed. 

PLACER    CLAIMS.* 

58.  On  Surveyed  Lands. — The  proceedings  to  obtain 
patents  for  placer  claims,  including  all  forms  of  mineral  de- 
posits excepting  veins  of  quartz  or  other  rock  in  place,  are 
similar  to  the  proceedings  prescribed  for  obtaining  patents 
tor  vein  or  lode  claims;  but  where  a  placer  claim  shall  l><> 
upon  surveyed  lands,  and  conforms  to  legal  subdivisions, 
no  further  survey  or  plat  will  be  required.  Where  placer 
claims  can  not  be  conformed  to  legal  subdivisions,  survey 
and  plat  shall  be  made  as  on  unsurveyed  lands. 

69.  Two  Dollars  and  Fifty  Cents  Per  Acre. — The  proceed- 
ings for  obtaining  patents  for  veins  or  lodes  having  already 
been  fully  given,  it  will  not  be  necessary  to  repeat  them 
here,  it  being  thought  that  careful  attention  thereto  by  ap- 
plicants and  the  local  officers  will  enable  them  to  act  under 
standingly  in  the  matter,  and  make  such  slight  modifications 
in  the  notice,  or  otherwise,  as  may  be  necessary  in  view 
of  the  different  nature  <.f  the  t\v<»  classes  <>f  claims  :  til-- 
price of  placer  claims 'being  fixed,  however,  at  two  dollars 
and  fifty  cents  per  jinv.  or  1'ractional  part  of  an  acre. 

CO.  Classification  of  the  Land — Descriptive  Report. — In 
placer  applications  for  patent  caro  must  he  exercised  to  de- 
termine the  proper  classification  of  the  lands  claimed.  T«» 
this  end  the  clearest  evidence  of  which  the  case  is  capable 
should  be  presented. 

(1)  If    the    claim    be    all    placer    ground,    that   fact 
must   be  stated  in  the  application   and  corroborated   by   ac 
companying  proofs;  If  of  mixed  placers  and  lodes,   it   should 
ho  so  set  out,  with  a  description  of  all  known  lodes  situated 
within  the  boundaries  of  the  claim.     A  specific  declaration, 
such  as  is  required  by  section  2333,   Revised  Statutes,  must 
he  furnished   as   to  each   lode  intended   to  be   claimed.      All 
other    known    lodes    are,    by    the    silence    of    the    applicant. 
excluded   by  law  from   all    claim   by  him,   of   whatsoever   na- 
ture,   possessory   or   other v. 

(2)  Mineral    surveyors   shall   at   the   expense   of  the 
parties  make  full  examination  of  all   placer  claims  surveyed 
by   them,   and   duly   note   the   facts   as   specified    in   the    law. 
stating   the    quality    and    composition    of    the    soil,    the    kind 
and   amount  of  timber  and   other   vegetation,   the   locus   and 
size  of  streams,  and  such  other  matters  ns  may  appear  upon 
the  surface  of  the  claim.     This  examination  should   include 
the   character    and   extent    of   all    surface   and    underground 
workings,  whether  placer  or  lode,  for  mining  purposes. 

(3)  In   addition   to   these  data,    which    the   law    re- 
quires to  be  shown  in  all  cases,  the  mineral  surveyor  should 
report  with  reference  to  the  proximity  of  centers   of   trade 
or  residence  ;  also  of  well-known  systems  of  lode  deposit  or 


*See,  also,   Regulations   19-30. 


LAND  OFFICE  RULES.  395 

»t"    individual    lodes.      He   should    also   report   as    to   the  use 

or    adaptability    of    the    claim    for    placer    mining  :    whether 

n    lii-ought    upon    it    in    sufficient    quantity    to 

mine  the  same,  or  whether  it  can  be  procured  for  that  pur 

:    and.    finally,    what    works    or   expenditures    have    been 

made   by   the  claimant   or   his   grantors  for   the  development 

of  the  claim,   and   their  situation  and   location  with  respect 

to  the  same  as  applied  for. 

i -4 1  This  examination  should  be  reported  by  the 
mineral  surv«yor  under  oath  to  the  surveyor-general,  and 
duly  corroborated;  and  a  copy  of  the  same  should  be  fur- 
nished with  the  application  for  patent  to  the  claim,  consti- 
tuting a  part  thereof,  and  included  in  the  oath  of  the 
;.|  pi  i(  ant. 

(5)      Applications  awaiting  entry,  whether  published 

or  not,  must  be  made  to  conform  to  these  regulations,  with 

ruination    as    to    the    character    of    the    land. 

•ies  already   mad.'   will   be  suspended  for  such   additional 

proofs  as  may  be  deemed  necessary  in  each  case. 

MILL  SITES. 

61.  Land  entered  as  a  mill  site  must  be  shown  to  be  non- 
mineral.      Mill  sites  are  simply  auxiliary  to  the  working  of 
mineral  claims,  and  as  section  I1:;::?,  which  provides  for  the 

Ming    of    mill    Bite*,    is    embraced    in    the   chapter   of   the 
at  ing  to  mineral   lands,  they  are  there- 
fore included   in   this  circular. 

62.  Noncontiguous  to  Lode — Independent  Application. — To 
avail    themselves   of   this   provision   of   law    parties    holding 
the  possessory   right   to  a   vein  or  lode,  and  to  a  piece  of 
Qonmineral   land  not  contiguous  thereto  for  mining  or  mill 
ing   purposes,   not  exceeding   the  quantity   allowed   for   sm-h 
purpose    by    sen  ion    j:;:;7,    or   prior    laws,    under    which    the 
lana  was  appropriated,    the  proprietors  of  such  vein  or  lode 
may    tile    in    the   proper   land   office   their   application    for   a 
patent,    under   oath,    in  manner  already  set  forth    herein,  which 
application,  together  with   the  plat  and  field  notes,  may   in- 
clude, embrace,   ami  n   addition   to  the  vein  or  lode 
claim,   such   QOncofltlfUOai   mill   site,   and   after  due   proceed- 
ings as  to  noti<                       patent    will   be    issued   conveying   the 
same    as    one    claim       The   owner   of   a    patented    lode   may. 
b\    an    ind.-pcndent    application,    secure    a    mill    site    if   good 
fa'th     is    manifest     in     its    use    or    Occupation    in    connect  ion 
with    the    lode    and    m>    .idvt  rse   claim    exists. 

63.  Lots    "A"    and   "B." — Where   the  original   survey 
includes    a    lode    claim    and   also  a   mill   site   the    lode   claim 
should  lie  described  in  the  plat  and  field  notes  as  "Sur.  No. 
87,   A.  '   and   the  mill  site  as  "Sur.    No.   .".7.   \\."   or  whatever 
may    be    its    appropriate   numerical   designation;   the   course 
and   distance   from   a   corner  of  the  mill  site   to  a  corner  of 
the  lode  claim  to  be  invariably  given  in  such  plat  and  field 
notes,   and  a   copy  of  the  plat  and  notice  of  application  for 
patent    must    be   conspicuously   posted  upon  the  mill   site  as 
well  as  upon  the  vein  or  lode  claim  for  the  statutory  period 


396  LAND  OFFICE  RULES 

of  sixty  days.  In  making  the  entry  no  separate  receipt  or 
certificate  need  be  issued  for  the  mill  site,  but  the  whofle 
area  of  both  lode  and  mill  site  will  be  embraced  in  one 
entry,  the  price  being  five  dollars  for  each  acre  and  frac- 
tional part  of  an  acre  embraced  by  such  lode  and  mill-site 
claim. 

64.  Mill  Site  Without  Lode — In   case  the  owner   of  a 
quartz   mill  or  reduction  works  is  not  the   owner  or  claim- 

•  ant  of  a  vein  or  lode  claim  the  law  permits  him  to  make 
application  therefor  in  the  same  manner  prescribed  herein 
for  raining  claims,  and  after  due  notice  and  proceedings,  in 
the  absence  of  a  valid  adverse  filing,  to  enter  and  receive  a 
patent  for  his  mill  site  at  said  price  per  acre. 

65.  In  every  case  there  must  he  satisfactory  proof  that  the 
land   claimed    as   a   mill    site    is    not    mineral    in    character, 
which  proof  may,  where  the  matter  is  unquestioned,  consist 
of   the    sworn   statement    of   two    or   more    persons    cap;ibl«' 
from  acquaintance  with  the  land,  to  testify  understandingly. 

CITIZENSHIP. 

66.  The  proof  necessary  to  establish  the  citizenship  of  ap- 
plicants for  mining  patents  must  be  made  in  the  following 
manner :    In   case   of   an    incorporated   company,    a   certified 
copy  of  their  charter  or  certificate  of  incorporation  must  be 
filed.     In  case  of  an  association  of  persons  unincorporated, 
the  affidavit  of  their  duly  authorized  agent,  made  upon  his 
own  knowledge  or  upon  information  and  belief,  setting  forth 
the  residence  of  each  person  forming  such  association,  must 
be    submitted.      This    affidavit    must    be    accompanied    by    a 
power  of  attorney  from  the  parties  forming  such  association, 
authorizing  the  person  who  makes  the  affidavit  of  citizenship 
to  act  for  them  in  the  matter  of  their  application  for  patent. 

67.  In  case  of  an  individual  or  an  association  of   individuals 
who  do  not  appear  by  their  duly  authorized  agent,  the  affi- 
davit of  each  applicant,  shewing  whether  he  is  a  native  or 
naturalized    citi/en,    when    and    where    born,    and    his    resi 
dence,   will   be   required. 

68.  In  case  an  applicant  has  declared  his  intention  to  be- 
come a   citizen   or  has  been  naturalized,   his   affidavit  must 
show  the  date,  place,  and  the  court  before  which  he  declared 
his   intention,    or    from   which   his   certificate   of   citizenship 
issued,  and  present  residence. 

69.  The  affidavit  of  the  claimant  as  to  his  citizenship  may 
be  taken  before  the  register  or  receiver,  or  any  other  officer 
authorized  to  administer  oaths  within  the  land  district ;  or, 
if  the  claimant  is  residing  beyond  the  limits  of  the  district, 
the  affidavit  may  be  taken  before  the  clerk  of  any  court  of 
record  or  before  any  notary  public  of  any  State  or  Territory. 

70.  Proof  by  Disinterested  Witnesses. — If  citizenship  is 
established  by  the  testimony  of  disinterested  persons,  such 
testimony    may    be    taken    at    any    place   before   any    person 
authorized  to  administer  oaths,  and  whose  official  character 
is  duly  verified. 


LAND  OFFICE  RULES.  397 

71.  Scrutiny  of  Proofs. — No  entry  will  be  allowed  until 
the    regis;  •  istied    hiurself,    by    careful    examination, 
that  proper  proofs  have  been  filed  upon  the  points  indicated 
in    tin-    law    ami    ofh. -ial    regulations.      Transfers    made    subse- 
quent   to    th«»    filing   of   the   application   for   patent    will    not 

ntry  will  be  allowed  and   patent  issued 

in    all    casrs    in    the   name   of   the   applicant   for   patent,    the 
l>y    the   patent,    of   course,    in    each    instance 
inuring  to  the  transferee  of  such  applicant  where  a  transfer 
has  been  made  pending  the  application  for  patent. 

72.  The   consecutive  series  of  numbers  of  mineral  entries 
must  be  continual,   whether  the  same  are  of  lode  or  placer 
claims  or  mill  > 

78.  Register's  Certificate  of  Posting  in  Land  Office — Plat. — 
In  s.  nding  up  the  papers  in  a  case  the  register  must  not 
« -in it  :  to  the  fact  that  the  notice  was  posted  in 

his  oMi< -e  !..r  th«'  full  period  of  sixty  days,  such  certificate 
to  State  distinctly  when  sm-h  post  in-  \\as  done  and  how 
long  continued.  Tin*  plat  forwarded  as  part  of  the  proof 
*hpuld  rn  '.  hut  ntllftl.  so  as  to  prevent  creasing. 

-mined  in  a  separate  package  or  so  enclosed 
with  the  other  papers  that  it  may  pass  through  the  mails 
without  '  mutilation.  If  forwarded  separately. 

the  letter  transmitting  the  papers  should  state  the  fact. 

POSSESSORY  KIi;i!T. 

74.  Chain  of  Title  Broken,  but  Possession  Clear. — The  pro- 
visions of  section  2332,  Revised  Statutes,  will  greatly  lessen 
the    l.urden    of    proof,   more    especially    in    the    case    of    old 
claims    located    many    y«  liieh. 
In  many  cases,  have  been  destroyed  by  fire,  or  lost  in  other 

e  lapse  of  time,  but  concerning  the  possessory 
riirht  to  which  all  controversy  or  litigation  has  long  been 
srttled. 

75.  Details  of  Proof  in  Such  Case When  an   applicant 

•  s  to  make  his  proof  of  possessory  right  In  accordance 

with  this  provision  of  law,  he  will  not  be  required  to  produce 
evidence  of  location,  copies  of  conveyances,   or  abstracts  of 
title,   as   in    other   cases,   but  will    be   required   to   furnish   a 
duly   certified   copy   of   the   statute  of   limitation    of   mining 
claims   for   the   State  or  Territory,   together   with    his  sworn 
statement  giving  a  clear  and  succinct  narration  of  the  facts 
as  to  the  origin  of  his  title,  and   likewise  as  to  the  contin- 
uation  of  his   possession   of   the  mining  ground  covered   by 
his  application  :   the  :.iv  >\   thereof:  the  nature  and  extent  of 
the  mining  that  has  been  done  thereon;   \\hether  there  has 
opposition  to  his  possession,  or  litigation  with  re- 
im  and,  if  so.  when  the  same  ceased:  whefher 
cessation  was  caused  by  compromise  or  by  judicial  de 
:md   any  additional  facts  within  the  claimant's   knowl- 
having  a   direct  bearing  upon  his  possession  and  bona 
which  lie  may  desire  to  submit  In  support  of  his  claim. 

76.  There  should  likewise   be  filed  a  certificate,  under  seal 
of   the    court    having   jurisdiction    of    mining    cases    within 


398  LAND  OFFICE  RULES. 

the  judicial  district  embracing  the  claim,  that  no  suit  or 
action  of  any  character  whatever  involving  the  right  ot  pos- 
session to  any  portion  of  the  claim  applied  for  is  pending, 
and  that  there  has  been  no  litigation  before  said  court 
affecting  the  title  to  said  claim  or  any  part  thereof  for  a 
period  equal  to  the  time  fixed  by  the  statute  of  limitations 
for  mining  claims  in  the  State  or  Territory  as  aforesaid, 
other  than  that  which  has  been  finally  decided  in  favor  of 
the  claimant. 

77.  The  claimant  should  support  his  narrative  of   facts  rela- 
tive to  his  possession,  occupancy,  and  improvements  by  cor- 
roborative testimony  of  any  disinterested  person  or  persons 
of  credibility  who  may  be  cognizant  of  the  facts  in  the  case 
and  are  capable  of  testifying  understandingly   in  the  prem- 
ises. 

ADVERSE   CLAIMS. 

78.  An  adverse  claim  must  be  filed  with  the  register  and 
receiver  of  the  land  office  where  the  application  for  patent 
is    filed,    or    with   the   register   and    receiver   of    the   district 
in  which  the  land  is  situated  at  the  time  of  filing  the   :nl 
verse  claim.     It  must  be  on  the  oath  of  the  adverse  claim 
;mt,  or  it  may  be  verified  by  the  oath  of  any   duly  author- 
ized agent  or  attorney  in  fact  of  the  adverse  claimant  cog- 
nixnnt  of  the  facts  stated. 

79.  Where  an  agent  or   attorney  in    fact  verifies  the  adverse 
claim,  he  must  distinctly  swear  that  he  is  such  agent  or  at- 
torney, and  accompany  nis  affidavit  by  proof  thereof. 

80.  The  agent  or  attorney  in  fact  must  make  the  affidavit 
in  verification  of  the  adverse  claim  within  the  land  district 
where  the  claim  is  situated. 

81.  The   adverse   claim    so   filed   must   fully   set   forth   the 
nature  and  extent  of  the  interference   or  conflict:   whether 
the  adverse   party  claims  as  :i    pun -haser   f<>r   valuahle  con- 
sideration or  as  a  locator;  if  the  former,  a  certified  copy  of 
the  original   location,   the  original  conveyance,  a  duly  certi 
tied  copy  thereof,  or  an  abstract  of  title  from  the  office  of 
the    proper    recorder   should   be   furnished,    or    if    the   trans 
action  was  a  merely  verbal  one  he  will   narrate  the   circum- 
stances  attending   the   purchase,   the   date   thereof,   and   the 
amount   paid,   which  facts  should   be  supported   by   the  affi- 
davit   of    one-    or    more    witnesses,    if    any    were    present    at 
the  time,  and  if  he  claims  as  a  locator  he  must  file  a  duly 
certified  copy  of  the  location  from  the  office  of  the  proper 
recorder. 

82.  Plat  of   Conflict— Legal  Subdivisions — In  order  that 
the  "boundaries"  and  "extent"  of  the  claim  may  be  shown, 
it  will  be  incumbent  upon  the  adverse  claimant  to  file  a  plat 
showing  his   entire  claim,   its  relative  situation   or  position 
with  the  one  against  which  he  claims,  and  the  extent  of  the 
conflict :  Provided,  however,  That  if  the  application  for  pat- 
ent  describes   the   claim,  by    legal   subdivisions,    the   adverse 
claimant,    if   also   claiming    by    legal    subdivisions,    may    de- 
scribe his   adverse   claim   in   the  same  manner  without  fur- 


LAND  OFFICE  RI'LES.  399 

ther  survey  up  plat.  If  the  claim  is  not  described  by  legal 
subdivisions,  it  will  generally  he  more  satisfactory  if  the 
plat  thereof  is  iii-Hle  from  an  actual  survey  ny  a'  mineral 
surveyor,  and  its  eorrectu.  ss  officially  certified  thereon  by 
him. 

83.     Notice  of  Filing  Adverse. — Upon  the  foregoing  being 
liled    within    tin-   sixty    days'    period    of    publication,    the    reg- 

iir  in  in-  r,  will  Immediately  give 

notice  in   writing  to  ///«    /n/»7iY.x-  to  the  contest    thai   such  ad- 

•     claim    has   l.c.-n    tiled,    informing    them    that    the   party 

wh«,    tiled    tin-   advert-    claim    \\ill    he    lequired    within    thirty 

from    th"  date  of  such    tiling   to   commence  proceedings 

In  •    court    of   compel. -:n    jurisdiction    to   determine    the    qurs 

lion   of    right    of  possession,  and   to  prosecute   the   same  with 

nal'le    diligence     to    tinai    judgment,     and     that,    should 

•MI  :  it    fail   to  do  so,   his  adverse  claim   will 

.  .nsidered     waived,    and     the    application    for     patent    be 

allowed    to    pro c.ed    upon    its    merits. 

.      M.     Adverse  Stays  Proceeding* — When  an  adverse  claim 

is    tiled    as    aforesaid,    the   register   or    receiver    will    indorse 

upon    the  same  the  precise  date  of   tiling,   and   preserve  a 

onl    of  the  date  of  notiti  thereon:   and    there 

all    proceedings  on   the  application  for   patent   will    be 

sta\i-d.    with    i  imi    of    tin-    completion    of    the    pub 

lic.it  ion    ami    posting  of   notices   and   plat,   and    the    tiling   of 

the  proof    thereof,    until     the    controversy    shall 

[•••en    finally    adjudhated    in    court,   or   the   adverse   claim 

.  'I     Of     \\  U  :    l:-a\\  n. 

85.  Copy  of  Judgment.      Where   an  adverse  claim   has 

-uit    thereon   commenced   within    the   statutory 
period,  and  final  Judgment    refl  mining  the  right   of 

it    will   p.  i.-nt   to  tile  with   t  he 

certi  :    the   court,   setting   forth    the    facts 

.judgment,   but   the  successful    party   must,    before 

ho    is    allow,. 1     to    Mi.ike    i-ntrv.    t:l»-    a     certified    copy    of    the 

aient    roll,    p.ir.-ther   wi'l>   the   other  evidence    required   by 

•     2828,    !:•  ;utes. 

86.  Where  such   suit  has  been   dismissed,   a  certificate   of 
the  ci.rk  of  the  court  to  that  effect  or  a  certified  copy   of 

•  ler  of  dismissal   will   be  sufficient. 

87.  Relinquishment    After    Adverse. — After    nn    adverse 
claim    has   been    til  -d   and   suit    commenced,   a   relinquishment 
or  other  evidence  of  abandonment  of  the  adverse  claim  will 
not   be  accepted,  but   the  cnse  must  be  terminated  and  proof 
thereof  furnished  as  required  by  the  last  two  paragraphs. 

88.  Certificate  of  No  Suit   Brought — Where  an  adverse 
claim  has  been  filed,  but  no  suit  commenced  against  the  ap 
plicant   for  patent   within  the  statutory  period,  a  certificate 
to  that   effect  by   the  clerk  of  the  Stfcte  court  having  Juris- 
diction in  the  case,  and  also  by  the  clerk  of  the  circuit  court 
of  the   inited   states  for  the  district  in  which  the  claim   is 
situated,   will    be   required. 


400  "   LAND  OFFICE  RULES. 


APPOINTMENT    OF    SURVEYORS    FOR    SURVEY    OF    MINING    CLAIMS 

CHARGES    FOR    SURVEYS   AND   PUBLICATIONS FEES    Of 

REGISTERS     AND    RECEIVERS,     ETC. 

89.  Newspaper  Charges. — Section  2334  provides  for  the 
appointment  of  surveyors  to  survey  mining  claims,  and  au- 
thorizes the  Commissioner  of  the  General  Land  Office  to  es- 
tablish the  rates  to  be  charged  for  surveys  and  for  news- 
paper publications.  Under  this  authority  of  law  the  fol- 
lowing rates  have  been  established  as  the  maximum  charges 
for  newspaper  publications  in  mining  cases  : 

i  1  i  Where  a  daily  newspaper  is  designated  the 
charge  shall  not  exceed  seven  dollars  for  each  ten  lines  of 
space  occupied,  and  where  a  weekly  newspaper  is  designated 
;is  the  medium  of  publication  five  dollars  for  the  same  space 
will  be  allowed.  Such  charge  shall  be  accepted  as  full  pay- 
ment for  publication  in  each  issue  of  the  newspaper  for 
the  entire  period  required  by  hiw. 

It    is    expected    that    these   notices    shall    not    be    so 
abbreviated  as  to  curtail  the  description  essential  to  a  per 
feet  notice    and  the  said   rates  established  upon  the   under 
standing   that   they   are  to  be  in   the  usual  body    i 
f«»r   advertisements. 

(2)  For  the  publication  of  citations  In  contests  or 
hearings  involving  the  character  of  lands  the  charges  shall 
not  exceed  eight  dollars  for  five  publications  in  weekly 
newspapers  or  ten  dollars  for  publications  in  daily  news- 
papers for  thirty  days. 

»0.  Appointment  of  Mineral  Surveyor! — Bond. — The  sur- 
veyors-general of  the  several  districts  will,  in  pursuance  of 
said  law,  appoint  in  each  land  district  as  many  competent 
surveyors  for  the  survey  of  mining  claims  as  may  seek  such 
appointment,  it  being  distinctly  undei -sii.oii  that  .-ill  exp. 
of  these  notices  and  surveys  are  to  be  borne  by  the  mining 
claimants  and  not  by  tin-  1'nit.d  stairs.  Tin-  statute  pn, 
vides  that  the  claimant  shall  also  be  nt  liberty  to  employ 
any  United  States  mineral  surveyor  to  make  the  survey. 
Each  surveyor  appointed  to  survey  mining  claims  before 
entering  upon  the  duties  of  his  office  or  appointment  shall 
he  required  to  enter  into  a  bond  of  not  less  than  $1,000  for 
the  faithful  performance  of  his  dutfes. 

91.  Surveyor-General's  Fees. — With   regard   to  the  /;/"/ 
thin  of  the  claim  and  other  office  work  in  the  surveyor-gen- 
eral's  office,  that  officer  will  make  an  estimate  of  the  cost 
thereof,   which  amount   the  claimant   will   deposit  with   any 
assistant    United   States    treasurer    or   designated    depository 
in  favor  of  the  United  States  Treasurer,  to  be  passed  to  the 
credit  of  the  fund  created  by  "individual  depositors  for  sur 
veys   of   the   public   lands,"  and   file   with   the   surveyor-gen- 
eral   duplicate    certificates    of    such    deposit    in    the    usual 
manner. 

92.  Surveyors  for  Each  District. — The  surveyors-general 
will  endeavor  to  appoint  surveyors  to  survey  mining  claims, 
so  that  one  or  more  may  be  located  in  each  mining  district 
for  the  greater  convenience  of  miners. 


LAND  OFFICE  Rl  401 

93.  The  usual  oaths  will  be  required  of    these  surveyors  and 
their   assistants   as   to   the  correctness   of   each   survey  exe- 

lu'in. 

'l  he   duty    <>f   tl  r   ceases  when   he   has   exe- 

cuted the  survey  and  returned  the  field  notes  and  prelim 
inary  plat  thereof  with  his  report  to  the  surveyor-general. 
lie  \\ill  not  in-  allowed  to  prepare  for  the  mining  claimant 
the  papers  in  support  of  an  application  for  patent,  or 
;he  duties  of  an  attorney  In-fore  the 
land  ntl're  in  connection  with  a  mining  claim. 

The     -  il     and     local     land     ollirers     a  re 

any    infringement   of   this   regulation    to 

94.  Should  it  appear  that  excessive  or  exorbitant  charges 
have   I.een    made   !  y    any    <nrv«»yor     or   any    publisher,    prompt 

n    will    he    taken    with    the   view   of  correcting   the   almse. 

95.  The  fees  payable  to  the  register  and  recoivor  for  filing 
act  in::    upon    applications   for    mineral-land    patents    are 

•  be  paid  by  the  applicant  for 

patent   at  nd  the  like  sum  of  five  dollars 

is  pavaMe  to  each  ..Hirer  i.y  an  adverse  claimant  at  the  time 
of  filing  his  adverse  claim.     <s  K.  S.,  paragraph  9.) 

96.  Receipt  for  Fees. — At  the  time  of  payment  of  fee 
tor   mining   application    or   adverse   claim    the    receiver    will 
Issue  his  receipt  therefor   in   duplicate,  one  to  be  given    the 
applicant  or  adverse  claimant,  as  the  case  may  be,  and   one 
to  be  forwarded   to  the  Commissioner  of  the  General   Land 
Offlc*  iny  of  issue.     The  receipt  for  mining  npplica 
tion  should  have  attached  the  certificate  of  the  register  that 

lands    included    in    the   application    .  to    such 

far  as  shown  by  the  records  of  his  office. 
97.     Monthly  Reports  to  General  Land  Office. — 
ter  and   receiver   will,  at   the  close  of  each  month,  forward 
to    this    ..Hi.-.-    an   abstract   of   mining   applications    filed,    an 
'verse    claims    i  t    mineral 

•  report  of  receipts  from  such  sales. 
98.     The  fees  and    purchase  money  received    by  registers  and 
iaced  to  the  credit  of  the  United  States 
in    th<  onthly    and    ouarterly    account,    rlmr 

up  it  irslng  account  the  sums  to  which  th 

and  e  respectively  entitled  as  fees  and   com 

missions,   with   limitations  in  regard  to  the  legal  maximum. 


AIIACTF.R     OF    LAN 

99.     The  Rules  of  Practice  in  cases  before  the  United  States 
nd  offices,    the   (ieneral    Land   Office,   and   the    I  ><• 
of   the   Interior   will,  so  far  as  applicable,  govern 
in   all  ad    proceedings   arising*  In   contests   and   hear- 

ings  to   determine    the   character   of   lands. 

100.  Agricultural  Entry  of  Lands  Returned  as  Mineral. — 
Public  land  returned  I.y  the  surveyor-general  as  mineral 
shall  he  withhold  from  entry  as  agricultural  land  until  the 


402  LAND  OFFICE  RULES. 

presumption   arising  from   such   a    return   shall    be   overcome 
by    testimony   taken   in   the   manner  hereinafter   described. 

101.  Hearings  to  determine  the  character  of  lands  are  prac- 
tically of  two  kinds,  as  follows  : 

(1)  Lands    returned    as    mineral     by    the    surveyor- 
general. 

When  such  lands  are  sought  to  be  entered  as  agri- 
cultural under  laws  which  require  the  submission  of  final 
proof  after  due  notice  by  publication  and  posting,  the  filing 
of  the  proper  nonmineral  affidavit  in  the  absence  of  allega- 
tions that  the  land  is  mineral  will  be  deemed  sufficient  as 
a  preliminary  requirement.  A  satisfactory  showing  as  to 
character  of  land  must  be  made  when  final  proof  is  sub- 
mitted. 

In  case  of  application  to  enter,  locate,  or  select  siu-h 
lands  as  agricultural,  under  laws  in  which  the  submission 
nf  final  proof  after  due  publication  and  posting  is  not  re- 

?  uired,  notice  thereof  must  first  be  given  by  publication 
or  sixty  days  and  posting  in  the  local  office  during  the 
same  period,  and  affirmative  proof  as  to  the  character  of 
the  land  submitted.  In  the  absence  of  allegations  that  the 
land  is  mineral,  and  upon  compliance  with  this  requirement, 
the  entry,  location,  or  selection  will  be  allowed,  If  otherwise 
re^nla  r. 

(2)  Lands   returned   as   agricultural   and   alleged   to 
be  mineral   in   character. 

Where  as  against  the  claimed  right  to  enter  such 
lands  as  agricultural  it  is  alleged  that  the  same  are  mineral, 
or  are  applied  for  as  mineral  lands,  the  proceedings  in  this 
class  of  cases  will  lie  in  the  nature  of  a  contest,  and  the 
practice  will  be  governed  by  the  rules  in  force  in  contest 
cases. 

(Paragraphs  102  to  104,  inclusive,  are  omitted  from 
this  revision  of  the  regulations,  as  appropriate  instructions 
relative  to  nonmineral  proofs  in  railro.ul.  state  and  forest 
lieu  selections  are  contained  in  separate  circulars.) 

105.  Examination  of  Witnesses. — At  hearings  to  deter 
miti"  the  chara--ter  of  lards,  th-  claimants  and  witnesses 
will  be  thoroughly  examined  with  regard  to  the  character 
of  the  land;  whether  the  same  has  been  thoroughly  pros- 
pected ;  whether  or  not  there  exists  within  the  tract  or  tracts 
claimed  any  lode  or  vein  of  quartz  or  other  rock  in  place, 
hearing  gold,  silver,  cinnabar,  lead,  tin,  or  copper,  or  other 
valuable  deposit  which  has  ever  been  claimed,  located,  n 
corded,  or  worked  ;  whether  such  work  is  entirely  abandoned, 
or  whether  occasionally  resumed  ;  if  such  lode  does  exist,  by 
whom  claimed,  under  what  designation,  and  in  which  subdi- 
vision of  the  land  it  lies  ;  whether  any  placer  mine  or  mines 
exist  upon  the  land  :  if  so,  what  is  the  character  thereof — 
whether  of  the  shallow-surface  description,  or  of  the  deep 
cement,  blue  lead,  or  gravel  deposits  ;  to  what  extent  mining 
is  carried  on  when  water  can  be  obtained,  and  what  the 
facilities  are  for  obtaining  water  for  mining  purposes  :  upon 
what  particular  ten-acre  subdivisions  mining  has  been  done, 


LAND  OFFICE  RULES  !<>:. 

and  at  what  time  the  land  was  abandoned  for  mining  pur- 
poses, if  abandoned  at  nil. 

106.  The  testimony  should  also  show  the  agricultural  capac- 
ities   of   the   land,    what   kind    of   crops    are   raised    thereon. 
and    tin*    value   thereof;   the   number   of   acres   actually    culti- 
vated  for  crops  of  cereals  or  vegetables,   and  within   which 
particular   ten-acre  subdivision   such   crops   are   raised:   also 
which  of  these  subdivisions  embrace  the  improvements,  giv- 
ing   in    detail    the    extent    and    value   of    the    Improvements, 
such    as    house,    barn,    vineyard,    orchard,   fencing,    etc.,    and 
mining    improvements. 

107.  The  testimony  should  be  as  full  and  complete  as  pos- 
Mi-le;  and  in  addition  to  the  leading  points  indicated  above. 
where  an  attempt   is  made  to  prove  the  mineral  character  of 
lands   \vhi«-h   have  been  entered  under  the  agricultural    laws. 
it    should   show   at    what    date,   if  at  all,   valuable  deposits  of 
minerals   were    first   known   to  exist   on  the   lands. 

108.  Segregating  Mineral   from   Agricultural   Land When 

ase  comes  before  this  office,  such  decision  will  be  made 

•lie   law   and    the    facts    may   justify.      In   cases   where   a 
to  set  apart    the  mineral  from   the  agri- 
cultural  land,   the  proper  party,   nt   his  <,»,,    MgMUMt.  will   be 
lequired    to    have    the    work    don,,    by    a    reliable    and    compe 
0  be  designated   by   the  surveyor-genera  1.     Ap 
plication     therefor    must     be    made     to     i;  :     and     re 

celvt  anied    by    description    of    the    land   to   be   seg- 

regated and   tl  upon   the  opposite  party 

of  notice  of  his  intention  to  have  such  segregation  made. 
Tl'e  register  B]  will  I'orv.  ..me  to  thb-  of- 

fice, when  th?  necessary  instructions  f..r  the  survey  will  be 
glTCl  in  sueh  CMC,  \\hen-  the  claims  to  be 

segregated  are  vein  or  lode  claims,  must  be  executed  in  such 
manner  as  will  conform  to  the  requirements  in  section  2820, 
I'nit.-  led  Statutes,  as  to  length  and  width 

and    parallel    end    lines. 

109.  Such    survey   when    executed    must    be    properly    sworn 
to   b>    the   surveyor,    either   before    a    notary    public,   officer   of 
a    i  ouri    of    record,    or    twffMTC   th«-    i-^istt-r   or    re.-civer.    ihe    <|e 
ponent's    character    and    credibility    to    be    properly    certified 
to  by   the   officer   administering   the  oath. 

110.  Verified   Plat   by  Surveyor-General. — Upon    the   Tiling 
of  the  plat  and  field  notes  of  such  survey  with  the  register 
and  receiver,  duly  sworn  to  as  aforesaid,   they  will  transmit 
the   same    to    the    surveyor-general    for    his'  verification    and 
approval  :    who.    if    he    tinds    the    work    correctly    performed, 
will    furnish   authenticated  copies   of  such  plat   and  descrip- 
tion   both    To   the    proper    local    land    oiiice  and    to   this   office, 

upon    the    usual    drawinu  paper    township    blank. 

The  copy  of  plat  furnished  the  local  office  and  this 
otJice  must  be  a  diagram  verified  by  the  surveyor-general, 
showing  the  claim  or  claims  segregated,  and  designating 
the  separate  fractional  agricultural  tracts  in  each  40-acre 
leual  subdivision  by  the  proper  lot  number,  beginning  with 
V  1  in  each  section,  and  giving  the  area  in  each  lot,  the 


404  LAND  OFFICE  RULES 

same  as  provided  in  paragraph  37  in  the  survey  of  mining 
claims  on  surveyed  lands. 

111.  Proceedings  if  Land  Decided  to  Be  Mineral. — The  fact 
that  a  certain   tract  of  land   is   decided   upon  testimony  to 
be   mineral    in   character   is   by   no   means   equivalent   to   an 
award  of  the  land   to  a  miner.     In  order   to  secure  a   pat- 
ent  for   such   land,   he   must   proceed   as   in   other   cases,   in 
accordance  with   the  foregoing   regulations. 

Blank  forms  for  proofs  in  mineral  cases  are  not  fur- 
nished  by   the   General   Land  Office. 

DISTRICT    OF    ALASKA. 

112.  Section  13,   ar.t  of  May  14,   1898,   according  to  native- 
horn  citizens  of  Canada   "the  same  mining  rights  and  priv 
ileges"  in  the  district  of  Alaska  as  are  accorded  to  citi/cns 
of  the  United  States  in  British^Columbia  and  the  Northwest 
Territory    by    1h<>    laws    of   the   Dominion    of   Canada,    is    not 
now  and  never  has  been  operative,  for  the  reason   that  the 
only    mining    rights    and    privileges    granted    to    any    person 
by  the  laws  nt   the  Dominion  of  Canada  are  those  of  lousing 
mineral   lands   upon   the   payment   of  a  stated    royalty,   and 
th«-    mining    laws    of   the   United    States   make   no   provision 
for  such   b 

113.  For  the  sections  of  the  act  of  June   6.    1900,   making 
further   provision  for  a  civil   government  for  Alaska,   which 
provide  for  the  establishment  of  recording  districts  and   tb- 
recording  of  mining  locations:  for  the   making  of  rules  and 
regulations    by    the    miners   and    for   the   legalisation    of    min 
inir    records;    for   the   extension   of  the   fninfng   laws    to    tin- 
district   of   Alaska,   and   for   the   exploration    and    mining   of 
tide    lands    and    lands    below    low    tide;    and    relating   to    the 
ritrhts    of    Indians    and    i>ersons    conducting    schools    or    mis 
sinus,  see  page  21    of  this  circular  i.ii   I.    I>.  j>. 

MINK  UAL    L.\NI»S     W  IT  II I X    FOREST    RESERY 

114.  The  act  of  June  4,   1897,  provides  that  "any  mineral 
lands   in   any   forest   reservation   which  have   been    or   which 
may  be  shown   to  ho  such,  and  subject  to  entry  under   tip 

1st  ing  mining  laws  of  the  United  States  and  the  rules  and 
regulations  applying  thereto,  shall  continue  to  be  subject 
to  such  location  and  entry,"  notwithstanding  the  reservat  ion 
This  makes  mineral  lands  in  the  forest  reserve*  subject  to 
location  and  entry  under  the  general  mining  laws  in  Un- 
usual manner. 

The  act  also  provides  that,  "The  Secretary  of  the 
Interior  may  permit,  under  regulations  to  be  prescribed  by 
him,  the  use  of  timber  and  stone  found  upon  such  reserva- 
tions, free  of  charge,  by  bona  fide  settlers,  miners,  residents, 
and  prospectors  for  minerals,  for  firewood,  fencing,  build 
ings,  mining,  prospecting,  and  other  domestic  purposes 
may  be  needed  by  such  persons  for  such  purposes;  such 
timber  to  be  used  within  the  State  or  Territory,  respectively, 
where  such  reservations  may  be  located." 


LAND  OFFICE  RULES.  4«>r, 

For   further    instruct  ions    under    this    act    see   circular 
of   April    4,    1! SO    I..    1'     88,    _s-30). 

BURYBY8    OF    MINING   CLAIMS. 
M:I:AL    PROVISIONS. 

115.  Appointment    of    Surveyors. — Under    section     ":'.".». 
U.   S.   Rev.   Siats..   the  I".   S.   Surveyor-general   "may  appoint 
in    each    land    district    containing    mineral    lands    as    many 
comp  s    as    shall    apply    for    appointment    to 

•  \    minim:    . -laims." 

116.  Persons   desiring:    such    appointments    should   therefore 
file  their  applications  with   the  surveyor-general   for  the  dis 
trict    wherein    appointment    is    asked,    who    will    furnish    all 
information    necessary. 

117.  All   appointments   of   mineral   surveyors    must   be   sub- 
mit tod   to  the  Commissioner  of  the  General   Land   Office  for 
approval. 

118.  Suspension     of     Surveyors. — Tli  neral 
authority    to   suspend    or    revoke    the    commissions    of 

mineral  surveyors  /or  cause.  Before  final  action,  however. 
rh»-  matter  should  be  submitted  to  the  Commissioner  of 
the  General  Land  Office  for  approval. 

119.  Such   surveyors   will    be    allowed    the   right   of   appeal 
from   the  action  of  the  surveyor-general   in   the  usual   man- 
ner.    Such  appeal  should  be  filed  with  the  surveyor-general, 
who  will  at  once  transmit  the  same,  with  a  full  report,  to 
the    Ceneral    Land  Office. 

120.  Investigation    of    Surveyor's    Charges Neither     th- 

surve  1    nor   the  Commissioner  of  the   General    I. a  ml 

Office   has    juri-di   tion    to  settle   differences,    relative    to    the 
paymeni     Q|    charges    for    field    work.    between    mineral    sur 
veyors  and   claimants.      1  private   con 

and    must     !•«•    enforced    in    !!:••    ordinary    manner.    > 
in    the    loet  ••irtmrnt    has.    li«.\v.-v.-r.    author- 

it  v    to    in  liaises    affecting    the    official    actions   of 

mineral  surveyors,  and  will,  on  sufficient  cause  shown, 
suspend  or  revoke  their  appointment. 

121.  The  surveyors-general  should  appoint  as  many  compe- 
tent   mineral   surveyors,  as  apply   for  appointment.   In   order 
that    claimants    may    have    a    choice    of    surveyors,    and    be 
enabled   to  have  their  work  clone  on  the  most   advantageous 
terms. 

122.  The  schedule  of  charges  for  office  work  should  le   as 
low    as   is   possihle.      No   additional    rharjji  s   should    be   made 

1  for  amended  surveys,    unless   the   necessity   there- 
arly    the    fault    of    the    claimant,    or    considerable 
additional    office   work   results   therefrom. 

123.  In   cases  where  the  error  in  the  original  survey  is  due 
to  tl  or  neglect  of  the  surveyor  who  made  it. 

liould  be   required   to   make  the  necessary  corrections   in 
the  field  at  his  own  md  the  surveyor-general  should 

advise    him    that    the    penalty    for    failure    to    comply    with 


406  LAND  OFFICE  RULES. 

instructions  within   a  specified  time  will   be  the   suspension 
or  revocation  of  his  commission. 

124.  Mineral  surveyors  will  address  all  official  communica- 
tions  to   the    surveyor-general.      They   will,   when   a   mining 
claim   is   the  subject   of  correspondence,  give   the  name  and 
survey   number.      In   replying   to   letters   they   will    give   the 
subject-matter  and  date  of  the  letter.     They  will  promptly 
notify  the  surveyor-general  of  any  change  in  post-office  ad- 
dress. 

125.  Mineral    surveyors    should    keep    a    complete    record    of 
each   survey   made   by   them   and   the   facts   coming  to   their 
knowledge  at  the   time,  as  well  as   copies  of  all  their  field 
notes,    reports,    and    official    correspondence,    in    order    that 
surh   evidence   may   be   readily   produced   when   railed   for   nt 
any   future    time.      Field    notes   and    other   reports    must   be 
written  in  a  clear  and  legibile  hand  or  typewritten,  in  non- 
copying   ink,    and    upon    the   proper    blanks   furnished   grain 
iiously     by    the     surveyor-general's    office     upon     application 
therefor.     No  interlineations  or  erasures  will   be  allowed 

126.  No  return  by  a  mineral  surveyor  will  be  recognized  as 
official   unless   it   is   over   his   signature  as   a   United   States 
mineral  surveyor,  and  made  in  pursuance  of  a  special  order 
from    the    surveyor-general's    office.      After    he   has    received 
an  order  for  survey  he  is  required  to  make  the  survey  and 
return   correct   field  notes   thereof   to  the  surveyor-general's 
office  without  delay. 

127.  Claimant   Contracts  With  Deputy. — The  claimant  is 
required,    in    all    cases,    to    make   satisfactory    arrangements 
with    the    surveyor    for    the    payment   for    his    services    and 
those  of  his  assistants  in  making  the  survey,  as  the   I'nited 
States  will  not  be  held  responsible  for  the  same. 

128.  Surveyor  Not  Act  as  Attorney. — A  mineral  surveyor 
is   precluded    from    acting,    either    directly   or    indirectly,    as 
attorney    in    mineral    claims.      His    duty    in    any    particular 
case   ceases  when    lie   has  executed  the  survey   and    returned 
the    field    notes    and    preliminary    plat,    with' his    report,    to 
the    surveyor-general.      He    will    not    be    allowed    to    prepare 
for  the  mining  claimant  the  papers  in  support   of   his  appli- 
cation   for    patent,    or    otherwise   perform    the   dutie«   of   an 
attorney  before  the  land  office  in  connection   with   a   mining 
claim.     lie   is  not  permitted  to  combine  the  duties  of  sur- 
veyor and  notary  public  in  the  same  case  by  administering 
ot.ths  to  the  parties  in  interest.     It  is  preferable  that  both 
preliminary    and    tin.il    o.-iths    of    assistants    should    !•»«    t-iken 
before    some    officer    duly     authorized    to    administer    oaths. 
other  than  the  mineral  surveyor.      In  cases,  however,   where 
great  delay,  expense,   or   inconvenience  would   result   from   a 
strict  compliance  with   this  rule  the  mineral   surveyor   is  an 
thorlzed    to    administer    the    necessary    oaths    to    his    assist 
ants,  but  in  each  case  where  this  is  done,  he  will  submit   to 
the    proper    surveyor-general    a    full    written    report    of    the 
circumstances   which    required   his   stated    action:    otherwise 
he  must  have  absolutely  nothfng  to  do  with  the  case,  except 
in  his  official  capacity  as  surveyor.      He  will  make  no  sur- 


LAND  OFFICE  RULES.  407 


mineral    claim    in    which    he   holds   an    imprest,    nor 
will   he  employ   chainmen    interest-.'d    therein    in   any   manner. 

SIUVKV  -—now    MAPI:.  * 

129.*  Survey  Must  Be  Actual.  —  The  survey  made  and  re- 
turned must,  in  every  case.  he  an  actual  survey  on  the 
irroiiml  in  full  detail,  made  hy  the  mineral  surveyor  In  per- 
son  after  the  receipt  of  the  order,  and  without  reference 
MI  any  knowledge  he  may  have  previously  acquired  hy  rea- 
son of  having  made  the  location  survey  or  otherwise,  and 
must  slx.w  the  actual  facts  existing  at  the  time.  This  pre 
eludes  him  from  calculating  the  connections  to  corners  of 
th»-  puhli*  .ml  location  monuments,  or  any  other 

lines  of  his  survey  through  prior  surveys  made  by  others 
and  substituting  the  same  for  connections  or  lines  of  the 
survey  returned  hy  him.  The  term  survey  in  this  para- 
graph applhs  not  onl\  to  the  usual  field  work,  but  also 
MI  the  examinations  required  f«n-  the  preparation  of  affi- 
davits of  the  hundred  dollars  expenditure,  descriptive  re- 

on   placer  claims,  and  all  other  reports. 

130.  The  survey  of  a  mining  claim  may  consist  of  sevoral 
eontl|  it  ions,    hut    such    survey    must,    in    conformity 
with    statutory    requirements,    dist  in^iiish    the    several    loca- 
tions.   and   exhibit    the   boundaries   of  each.      The   survey    will 

.  1-11   but    one  number. 

131.  The  survey  must  be  made  in  strict  conformity  with,  or 
be   embraced  within,   the  lines,  of  the  location  upon  which  the 
order  :       If   the   survey    and   location   are   identical. 
that    fart    must    be  clearly  and  distinctly  stated   in    the  field 
notes.      If   not    identical,    a    bearing   and    distance    must    be 
iriven    M  iblished    corner   of   survey    to   the    cor- 

•  nding   corner   of  the   location,    and    the    location    corner 

must    be   fully    d.  serihed.   so   that    it  can  be  identified.     The 

of   the   1"  found    upon    the   ground,    must    he 

laid    down    upon    the   preliminary    plat    in    such    a   manner   as 

to  contrast  and  show   their  relation  to  the  lines  of  survey. 

132.  Comers  Not  to  Be  Changed  --  In  view  of  the  princi- 
ple   that     coonei    and    distance    must    give    way    when    in 
conflict     with    fixed    objects    and    monuments,    the    surveyor 
will    not.    under    any    circumstances,    change    the    corners    of 
the    location    for    the    purpose   of   making   them    conform    to 
the    description    in    the    record.      If   the    difference   from    the 
location  be  slight,   it   may  be  explained  in  the  field  notes. 

133.  Not  Exceed   Statutory   Length  and  Width  --  No  min- 
ing claim  located  subsequent  to  May  10.  1872.  should  exceed 
the  statutory  limit    in   width   on  each  side  of  the  center  of 
vein    or    1,500    feet    in    length,   and   all    surveys    must   close 
wirhin   ."M-IIMI  feet  in  1,000  feet,  and  the  error  must  not  be 
such  as  to  make  the  location  exceed  the  statutory  limit,  and 
in   absence  of  other  proof  the  discovery  point  Is  held   to  be 
the    renter   of   the    vein    on    the    surface.      The    course    and 
N'Mirth   of  the   vein  should   be  marked  upon  the  plat. 

131.  Instrument  —  True  Meridian.  —  All  mineral  surveys 
must  he  made  with  a  transit,  provided  with  a  solar  attach- 


408  LAND  OFFICE  RULES 

ment,  by  which  the  meridian  can  be  determined  independ- 
ently of  the  magnetic  needle,  and  all  courses  must  be  re- 
ferred ty>  the  true  meridian.  The  variation  should  be  noted 
at  each  corner  of  the  survey.  The  true  course  of  at  least 
one  line  of  each  survey  must  be  ascertained  by  •astronom- 
ical observations  made  at  the  time  of  the  survey  ;  the  data 
for  determining  the  same  and  details  as  to  how  these  data 
were  arrived  at  must  be  given.  Or,  in  lieu  of  the  foregoing 
the  survey  must  be  connected  with  some  line  the  true  course 
of  which  has  been  previously  established  beyond  question, 
and  in  a  similar  manner,  and,  when  such  lines  exist,  it  is 
desirable  in  all  cases  that  they  should  be  used  as  a  proof 
of  the  accuracy  of  subsequent  work. 

135.  Ties  to  Public  Survey. — Corner  No.  1  of  each  loca- 
tion embraced  in  a  survey  must  be  connected  by  course  and 
distance  with   nearest   corner  of  the  public  survey   or   with 
a  United  States  location  monument-,  if  the  claim  lies  within 
two  miles  of  such  corner  or  monument.     If  both  MIC  within 
the  required  distance  the  connection  must  be  with  the  cor- 
ner  of   tlio  public  survey. 

136.  Mineral    Monuments    in    Suspended    Townships. — Sur- 
veys   and    connections    of   mineral    claims    may    be    made   in 
suspended    townships    in    the    same    m;innrr    ai    though    the 
claims    were    upon    unsurveycd    land,    except    as    hereinafter 
specified,     by    connecting    them     with     independent    mineral 
monuments.     At  the  same  time,  the   position   of  any  public 
land    corner    which    may    be   found    in    the    neighborhood    of 
the  claim  should  be  noted,  so  <that,  in  csise  of  ilie  release  of 
the  township  from  suspension,  the  position  of  the  claim  can 
I  e  shown  on   the  plat. 

137.  No  Choice  of  Tie. — A  mineral  survey  must  not  be 
returned  with  its  connection  made  only  with  a  « •••rm-r  of  tin- 
public    survey,    where    the    survey    of    the    township    within 
which  it  is  situated  is  under  suspension,  nor  connected  with 
a   mineral  monument  alone,  when  situated  within  the   limits 
of   a    township  the   regularity   and  correctness  of  the  survey 
of   which    is   unquestioned. 

138.  Corner  No.  1 — Section  Lines. — In  making  an  official 
survey,    corner   No.    1    of  each   location   must   be   established 
at    the   corner   nearest    the   corner   of   the    public   survey   or 
location   monument,   unless  good  cause  is  shown   for  its   be- 
ing  placed   otherwise.      If  connections   are  given   to   both   a 
corner  of  the  public  survey  and  location  monument,  corners 
Nos.  1  should  be  placed  at  the  corner  nearest  the  corner  of 
the  public  survey.     When  a  boundarv  line  of  a  claim   inter- 
sects   a    section    line    courses   and   disfances    from    point    of 
intersection  to  the  Government  corners  at  each  end   of  the 
half  mile  of  section  line  so  intersected  must  be  given. 

139.  Erection  of  Mineral   Monuments In   case  a  survey 

is  situated  in  a  district  where  there  are  no  corners  of   the 
public    survey    and    no    monuments    within    the    prescribed 
limits,    a    mineral    monument    must    be    established,    in    the 
location    of  which    the   greatest   care   must    be   exercised   to 
insure  permanency  as  to  site  and  construction. 


LAND  OFFICE  RULES.  409 

140.  The  site,  when  practicable,  should  he  some  prominent 
point,   visible  for  a  long  distance  from  every  direction,  and 
should  be  so  chosen  that   the  permanency  or  the  monument 
will  not  b«>  endangered  by  snow,  'rock,  or  landslides,  or  other 
natural    c:i 

141.  Dimensions    and    Marking. — The    monument    should 

one  not  1«  o  inches   long,  20  inches 

wide,   and   «;   inches   thick,   set   halfway   in   the  ground,   with 
a  conical   mound  of  stone  4  feet  high  and  6  feet  base  along- 
side.    The  let;  U   M..  followed  by  the  consecutive 
nuinlii T    of    the    monument    in    the    district,    must   be   plainly 
.-  (1  upon  the  stone.     If  impracticable  to  obtain  a  stone 
of    required    dimensions,   then  a   post   8   feet   long,   6   inches 
in    the   ground,   scribed   as   for  a   stone 

monument.  pn-tec -t.d  by  a  well-built  conical  mound  of  stone 
•  •f  not  liss  than  3  feet  high  and  6  feet  base  around  it.  may 
!.«•  us.d  The  exact  point  for  connec^on  must  be  Indicated 
on  the  monument  by  an  x  chiseled  thereon;  if  a  post  is 
ili.  n  a  taek  muM  be  driven  into  the  post  to  indicate 
the  point. 

142.  Ties   to   Mineral    Monument.      i'm.n    the   monument, 
connections    by    course   and   distance   must  be   taken   to  two 
"i-  H  s,  and  to  any  well-known  and 
Permanent  objects  in   the   vit-inity,   such  as   the  confluence  of 
stream^,    prominent    ro«-ks.    buildings,    shafts,    or   mouths    of 

s    iniisi    be   properly  scribed    it.    T.    and 
•'!    r.     i:..   together  with   the   number  of 

the  num.  in  :  the  exact  point  on  the  tree  or  stone 

to   which  ken   should  be  indicated  by  a 

••;her    unmistakable   mark.      Hearings   should  also   be 

ak.  n    to   prominent    mountain    peaks,   and   the  approximate 

listan<e    and    dii.  lained    from    the   nearest    town 

>r    minim:    camp.      A    detailed    description    of    the    locating 

nonunu-nt.   \vhh   a   topographical   map  of  its  location,  should 

Mnish.-d   the  office  of  the  surveyor-general   by   the  sur 

143.  Comers   may    consist   of — 

I'irst. — A  stone  at  least  24  inches  long  set  12  inches 

in   the  Around,  with  a   <«>ni«al  mound  of  stone  1%  feet  high, 
2  feet  has.-,  alons 

i    least    3    feet   long   by   4   inches 

square,   set   18   inches   in    the   ground   and   surrounded  by   a 
substantial  mound  of  stone  or  earth. 

in   place. 

A    si. me    should    always    be    used   for   a   corner   when 
-o  used  the  kind  should  be  stated. 

144.  Marking  Corners. — All  corners  must  be  established 
in    a    permam-ut    and    workmanlike    manner,   and    the   corner 
and    suiv.-v    numb«  r    must    I  ••    neatly   chiseled    or   scribed   on 
th»-  •!<  i  the  claim.    The  exact  corner  point  must  be 
permanently   indicated  on  the  corner.     When  a  rock  in  place 
is    used    its"  dimensions   above   ground   must  be  stated   and  a 

the  exact  corner  point. 

145.  In  case  the  point  for  the  comer  he  inaccessible  or  un- 
suitable  a    witness  corner,   which  must  be  marked   with   the 


410  LAND  OFFICE  RULES. 

letters  W.  C.  in  addition  to  the  corner  and  survey  number, 
should  be  established.  The  witness  corner  should  be  located 
upon  a  line  of  the  survey,  and  as  near  as  possible  to  the 
true  corner,  with  which  it  must  be  connected  by  course  and 
distance.  The  reason  why  it  is  impossible  or  impracticable 
to  establish  the  true  corner  must  always  be  stated  in  the 
field  notes,  and  in  running  the  next  course  it  should  be 
stated  whether  the  start  is  made  from  the  true  place  for 
corner  or  from  witness  corner. 

146.  The  identity  of  all   corners   should  le  perpetuated  by 
taking    courses    and   distances    to   bearing   trees,    rocks,    and 
other  objects,  as  prescribed  in  the  establishment  of  location 
monuments,   and  when   no   bearings   are   given   it   should    be 
stated    that    no    bearings    are   available.      Permanent   objects 
should  be  selected  for  bearings  whenever  pOMlbie. 

147.  Tying    to    Official    Survey If    an    official    mineral 

survey   has   been   made   in   the   vicinity,   within   a   reasonable 
distance,    a   further   connecting   Jine   should    he    run    to   some 
corner   thereof:    and   in    like   manner   all    conflicting   sm\.\> 
and  locations  should   In-   so  connected,   and   the   corner   with 
which  connection  is  made  in  each  case  described.     Such  <-«»n 
nections  will   be  made  and  conflicts  shown  according  to   the 
boundaries   of   the  neighboring  or   conflicting  claims   a>  each 
is  marked,  defined,  and  actually  established  upon  the  ground 
The   mineral   surveyor  will  fully  and  specifically  state  in   his 
return    lunr    and    by    what    risible    rri»/r;»rr.v    he'    was    able    to 
identify   on    the  ground   the  several   conflicting  surveys   and 
those  which  appear  according  to  their  returned  tie  or  hound 
ary  lines  to  conflict,   if  they  were  so  identified,   and   report 
errors  or  discrepancies  found  by   him    in  any   such   sin  \ 

In  the  survey  of  contiguous  claims  wjiich  constitute  a  c.m 
solidated  group,  where  corners  are  common,  hearings  should 
be  mentioned  but  once. 

148.  Topography. — The    mineral    surveyor    should    note 
carefully  all  topographical  features  of  the  claim,  taking  dis 
tances  on  his  lines  to  intersections  with  all  streams,  gulches. 
ditches,    ravines,    mountain   ridges,    roads,    trails,    etc..    with 
their  widths,  courses,   and  other  data   that   may  be  required 
to   map  them   correctly.     All  municipal   or  private   improve 
ments.    such    as    blocks,    streets,    and    buildings,    should    be 
located. 

149.  Conflict    With    Other    Surveys. — If,    in    running    the 
exterior  lines  of  a  claim,  the  survey  is  found  to  conflict  with 
the  survey  of  another  claim,   the  distances  to  the  points  of 
intersection,   and   the   courses   and   distances   along   the    line 
intersected   from    an    established   corner   of   such    conflicting 
claim  to  such  points  of  intersection,  should  be  described  in 
the  field  notes  :   Provided,  That  where  a  corner  of  the  con- 
flicting survey   falls   within   the  claim   being  surveyed,   such 
corner  should   be  selected   from  which   to  give  the   bearing, 
otherwise    the    corner    nearest    the    intersection    should    be 
taken.      The    same    rule    should    govern    in    the    survey    of 
claims  embracing  two  or  more  locations  the  lines  of  which 
intersect. 


LAND  OFFICE  RULES.  411 

150.  A  lode  and   mill-site   claim  in  one   survey  will  be  dis- 
tinguished  by   the  letters   A   and   B  following  the  number  of 
i  In-  survey.     The  corners  of  the  mill  site  will  be  numbered 
independently    of   those   of   the    lode.      Corner   No.    1    of    the 
mill   site  must   be  connected  with  a  corner  of  the  lode  claim 
as    well    as    with    a    corner    of   the   public   survey    or    United 

I    location   monument. 

151.  When  a  placer  claim  includes  lodes,   or  when   several 
contiguous    placer    or    lode    locations    are    included    as    one 
rlaim   in   «>MC  survey,   there   must  be  given  to  the  corners  of 
each    location   constituting   the  same  a   separate   consecutive 
numerical   designation,   beginning  with  corner  No.  1   in  each 
me. 

152.  Conflicting:  Surveys  Named. — Throughout  the  desorip- 
tion   of  the   ran  each  reference  to  the   lines  or  cor- 
ni-rs   of  a    location,    the    name    thereof   must    he   given,    and   if 
unsnrveyed.    the   fact  stated.      If  reference  is   made  to  a  lo- 
cation  included    in   a   prior  omVial   survey,    the   survey   number 
must   I  ••   iriven.   foih.u.d  by  the  name  of  the  location.     Oor 
Ben    ihooN                   :i-ed   once  only. 

153.  The  total  area  of  each  location  and  also  the  area   in 
conflict     with    each    intersecting    survey    or    claim    should     be 

d;    also    the    total    area    claimed.       Hut     when     locations 
embraced    in    om-    -urvey    conflict    with    each    other    such    con- 
i   should  only   be  stated   in  connection   with   the  location 
from    which    the   <  o.iilictiug  area  is  excluded. 

154.  Section,  Township  and  Range  to  Be  Shown.- — It    should 
be   stated    particularly    wh.-th.M'    the    claim    is    upon    survey,! 
or    unsurveyed    public    lands,    giving    in    the    former   case    the 
quarter  section,    township,   and    range   in    which   it   is   located. 
and    the    section    lines    xhonld    he    indicated    l«v    full    lines   and 
th.-  quarter  -sect  ion  lines  by  dotted  lines. 

155.  The    title-page    of    the    field    notes    must    contain    the 
HMress  of  the  claimant  or  his  authorized  agent. 

156.  In   the   mineral  surveyor's  report  of  the  value   of  the 
iniprov.-m«-nts    all    nrtnnl    expenditures    and    ininiini    improve 
ments  matle  by    the  claimant    or   his  -ranters,   having  a   direct 
relation    to   the  development  of  the  claim,  must   be  lnclude/1 
in    the    estimate 

157.  What    Improvements    Excluded. — The    expenditures 
re.|uire<l    may    lie    made    from    the    surface    or    in    running   a 
tunnel,  drifts,  or  .-r.-sscuts  for  the  development  of  the  claim. 
Improvements    of    any    other    character,    such    as    buildings, 
machinery,  or  roadways,  must  be  excluded  from  the  estimate. 
unless  it   is  shown  dearly  that  they  are  associated  with  act- 
ual excavations,  such  as  cuts,  tunnels,  shafts,  etc.,  are  essen- 
tial  to   the  practical   development  of,  and  actually  facilitate 
the    extraction    of    mineral    from,    the    claim. 

158.  Ties — Abandoned     Improvements All     mining     and 

other  improvements  claimed  will  be  located  by  courses  and 
distances  from  corners  of  the  survey,  or  from  points  on  the 
•  enter  or  side  lines,  specifying  with  particularity  and  detail 
the  dimensions  and  character  of  each,  and  the  Improvements 
upon   each   location   should   be   numbered   consecutively,    the 


412  LAND  OFFICE  RULES. 

point  of  discovery  being  always  No.  1.  Improvements  made 
by  a  former  locator  who  has  abandoned  the  claim,  can  not 
be  included  in  the  estimate,  but  should  be  described  and 
located  in  the  notes  and  plat. 

159.  In  case  of  a  lode  and  mill-site  claim  in  the  sp.me  sur- 
vey the  expenditure  of  five  hundred  dollars  must  be  shown 
upon  the  lode  claim. 

160.  Expenditure  During   Publication. — If  the  value  of  the 
labor  and  improvements  upon  a  mineral  claim  is  less   than 
five  hundred  dollars  at  the  time  of  survey,  the  mineral  sur 
veyor  may  file  with  the  surveyor-general  supplemental  proof 
showing  live  hundred  dollars  expenditure  made  prior  to  the 
expiration  of  the  period  of  publication. 

161.  Preliminary   Plat. — The   mineral    surveyor   will   re- 
turn with  his  field  notes  a  preliminary  plat  on   blank  sent 
to  him  for  that  purpose,  protracted  on  a  scale  of  two  hun- 
dred feet  to  an  inch,  if  practicable.     In  preparing  plats  the 
top   is  north.     Copy  of  the  calculations  of  areas  by  double 
meridian    distances    and    of    all    triangulations    or    traverse 
lines   must   be   furnished.     The  lines  of  the  claim   surveyed 
should  be  heavier  than  the  lines  of  conflicting  claims. 

162.  Errors— Joint     Survey Whenever     a     survey     has 

been    reported   in   error   the   snrveyor   who   made   it   will    be 
required  to  promptly  make  a  thorough  examination  upon  the 
premises  and  report  the  result,  under  oath,  to  the  surveyor- 
general's  office.     In  case  he  finds  his  survey  in  error  he  will 
report   in   detail   a.11  discrepancies  with   the   original   survey 
and  submit  any  explanation  he  may  have  to  offer  as  to  the 
cause.      If,    on    the    contrary,    he    should   report    his   survey 
correct,  a  joint  survey  will  be  ordered  to  settle  the  differ- 
ences with   the  surveyor   who  reported   the  error.     A   joint 
survey    must    be    made   within   ten   days    after    the    date    <>r 
order  unless  satisfactory  reasons  are  submitted,  under  oath, 
for  a  postponement.     The  field  work  must  in  every  sense  of 
the  term  be  a  joint  and  not  a  separate  survey,  and  the  ob- 
servations   and   measurements    taken    with    tin*   same   instru- 
ment and  chain,  previously  tested  and  agreed  upon. 

163.  The   mineral   surveyor   found   in   error,    or,   if  both   are 
in  error,  the  one  who  reported  the  same,   will   mak«-  out   tin- 
field    notes    of    the    joint    survey,    which,    after    l>»'ing    duly 
signed  and   sworn   to   hy    both    parties,   must    !>«•    t ransinii  te<l 
to  the  surveyor-general's   otl'u «-. 

164.  Inasmuch    as    amended    surveys    are    ordered    only    by 
special  instructions  from   the  General   Land  Office,   and   the 
conditions  and  circumstances  peculiar  to  each  separate  case, 
and    the   object    sought    by    the   required    amendment,    alone 
govern  all  special  matters  relative  to  the  manner  of  making 
such  survey  and  the  form  and  subject-matter  to  be  embraced 
in  the  field  notes  thereof,  but  few  general  rules  applicable  to 
all  cases  can  be  laid  down. 

165.  The  amended  survey  must  be  made  in  strict  conform- 
ity  with,   or   be  embraced   within,   the   lines  of  the   original 
survey.     If  the  amended  and  original  surveys  are  identical, 
that  fact  must  be  clearly  and  distinctly  stated  in   the  field 


LAND  OFFICE  RULES  413 

li'  not  identical,  a  bearing  and  distance  must  be 
n  from  each  establish'  d  ••••rner  of  the  amended  survey 
to  the  corresponding  corner  of -the  original  survey.  The 
lines  of  the  original  survey,  as  found  upon  the  ground, 
must  be  laid  down  upon  the  preliminary  plat  in  such  man- 
r.er  as  to  contrast  and  show  their  relation  to  the  lines  of 
the  amended  sur 

166.  The   field  notes  of  the   amended  survey  must  be   pre- 
•I  on  the  same  size  and  form  of  blanks  as  are  the  Held 

notes  of  the  original  survey,  and  the  word  "amended"  must 
be  used  before  the  word  "survey"  wherever  it  occurs  in  the 
field  notes. 

167.  Descriptive   Report   on   Placers.— Mineral   surveyors 
are  required*  to  make  full  examinations  of  all   placer  claims 
at   the  time  of  survey  and  file  with  the  field  notes  a  deseriu 

.    in   which    will    be  descri 

The  quality  and  composition  of  the  soil,  and  the 
kind  and  amount  of  timber  and  oth  ion. 

MS   and  size  of  streams,   and  such   other 
matter   as   may    app.-ar   upon    the  surface  of   the   cl:i: 

The  character  and  extent  of  all  surface  and 
underground  workings,  whether  plaeer  or  lode,  for  mining 
purposes,  locating  and  describing  them. 

(<l)  ra   of   trade  or  residence. 

(e)  The  proximity  of  w.  11  km  \\  n  *>\  stems  of  lode  de- 
posits or  of  individual   lodes. 

(f)  The  use  !>allty  of  the  claim   for  pla< er 
mining,    and    \\li.-tln-r    \\ater    has    h.-en    l>roiii;ht     upon    it    in 

ity    tn    miii"    th«-    Ban  :  her    it    can    be 

procured  for   that    purpose. 

(U)  What  works  «.r  expenditure  have  i.een  made  by 
th.«  claimant  or  his  grantors  for  the  development  of  ih-> 
•  !ai>  ii  and  location  with  respect  to  the 

same  as  applied  for. 

fh)     The    mi»-   situation   of  all    mines,    salt    li.-ks.  salt 
-print's,   and  mill  sites  which  come  to  the  surveyor's  knowl- 
or  a  report  by  him  that  none  exist  on  the  claim,  as  the 
may   warrant. 

ort  must  be  made  under   oath   and  duly 
corroborated  by  one  or  more  disinterested  persons. 

168.  The  employing   of   claimants,   their  attorneys,   or  i-ar- 
in  interest,  as  assistants  in  making  surveys  of  mineral 

claims,  will  not  be  allo\\ 

169.  Accuracy  Required — Threat  of  Revocation.  — The  field 
work    must   be   accurately   and   properly    performed    and    re- 
turns  ma-!  rmhy    with   the  foregoing   instructions. 

:s  in  tho  survey  must  be  corrected  at  the  surveyor's 
own  t-xpens.'.  and  if  the  time  required  in  the  examination  of 
the  returns  is  increased  by  reason  of  neglect  or  carelessness, 
he  will  he  required  to  make  an  additional  deposit  for  office 
work.  Ho  will  be  held  to  a  strict  accountability  for  the 
faithful  discharge  of  his  duties,  and  will  be  required  to 

ve  fully  the  requirements  and  regulations  in  force  as 
to  making  mineral  surveys.  If  found  incompetent  as  a  sur- 


414  CIRCULAR  TO  APPLICANTS. 

veyor,  careless  in  the  discharge  of  his  duties,  or  guilty 
of  a  violation  of  said  regulations,  his  appointment  will  be 
promptly  revoked. 

R.    A.   BALLiNf;i:u. 
Commit** 
Approved,   May   21,   1907. 

JAMES  RUDOLPH  GARFIELD.,  Secretary. 


^CIRCULAR  TO  APPLICANTS. 


To  Applicants  for  Mineral  Survey  Orders: 

You  will  observe  the  following  requirements  in  the 
conduct  of  your  business  with  the  Surveyor  General's  Office, 
the  same  being  based  upon  the  United  States  mining  laws 
and  circular  and  special  instructions  from  the  Commissioner 
of  the  General  Land  Office : 

1.  All    applications    for    survey    orders,    descriptive 
reports  on  placer  claims,  or  certificates  of  five  hundred  dol- 
lars  expenditure,   should   be  addressed   to  the   Surveyor   Gen- 
eral and  be  signed  by  the  claimants,  their  agent  or  attorney. 

2.  Each  application   should  contain  : 

in)  The  name  of  the  claimanl  in  full,  and  as  it  is 
desired  to  appear  in  the  application  for  patent. 

(b)  The  name  of  each  location  embraced  in  the 
claim. 

fo)  The  name  of  the  land  and  mining  districts  in 
which  the  claim  is  located. 

(d)  The  name  of  the  United  States  mineral  surveyor 
to  whom  it  is  desired  the  order  shall  be  issued. 

•'I.  You  are  required  to  file  with  each  application  for 
survey  order,  a  copy  of  the  record  of  location  of  the  claim. 
pn»p<»rly  certified  by  the  recorder  of  the  county  or  mining 
district  where  the  claim  is  situate. 

4.  The  mineral  surveyor  is  required  to  survey  the 
claim  in  strict  conformity  with  or  within  the  lines  of  th«- 
location  upon  which  the  order  of  survey  is  based.  You  arc. 
therefore,  advised  before  filing  your  application  to  see  that 
your  location  has  heen  made  in  compliance  with  the  law 
and  regulations,  and  that  it  properly  describes  the  claim  for 
which  i lie  patent  is  sought. 

The  act  of  Congress  of  May  10,  1872,  expressly  pro- 
vides that  "the  location  must  be  distinctly  marked  on  the 
ground,  so  that  its  boundaries  can  be  readily  traced,"  and 
"that  all  records  of  mining  claims  hereafter  made  shall  con- 
tain the  name  or  names  of  the  locators,  The  date  of  location, 
and  such  a  description  of  the  claim  or  claims,  located  by 
reference  to  some  natural  object  or  permanent  monument, 
as  will  identify  the  claim." 

*NoTE. — This  circular  was  part  of  tin-  .Manual  of  In- 
structions issued  in  1895,  and  is  unaffected  by  subsequent 
Revisions  of  Land  Office  Regulations. 


CIRCULAR  TO  APPLICANTS.  M.~> 

"These  provisions  of  the  law  must  be  strictly  com- 
plied with  in  each  case  to  entitle  n  claimant  to  a  survey  and 
patent,  and  therefore  should  a  claimant  under  a  location 
ma<l«'  subtil  I/IK  nt  t«>  the  :  the  mining  act  of  May 

l<>.  is?!*,  who  has  not  complied  with-said  reguirements  in 
regard  to  marking  the  location  upon  the  ground,  and  record- 
in-  the  same,  apply  for  a  survey,  you  will  decline  to  make 

"The  only   relief  for  a  party  under  such    circumstances, 
will   be   to   make  a   new   location    in    conformity   to   law   and 
ations.  as  i  ill  he  approved  l.y   this  otlico.  unless 

these  and  all  other  provisions  of  law  are  substant  ially 
complied  with  <  s. .  deneral  Land  Office  circular  dated 
Norember  - 

5.  Par.  00  (mn>-  '.n).  General   Land  Office  circular,  of 
:i)U-r   in.   IXJH.  edition   hecemlier  1.   1^'.M.  relating  to  the 

expense  of  office  work  connected  \\ith  the  survey  of  mineral 
clain, 

"With    r  he   iilnttimi   of   the    claim    and    other 

office  irurk  in  tin*  Surveyor  General's  office,  that  officer  will 
make  an  estimate  of  the  cost  thereof,  which  amount  the 
claimant  will  deposit  with  any  assistant  United  States 
treasurer,  or  d.  depository,  in  favor  of  the  rnited 

u>  passed  to  the  credit  of  the  fund  <  n 

ated  l.y  'individual  deiMMtton  for  surveys  of  the  public 
lands.'  and  file  with  the  Surv-vr  General  duplicate  cer- 
tiiir  h  deposits  In  the  usual  manner."  i  So,-  iiule 

91,   P 

6.  The     various     Sur\  ••  •  ra!      have      adopted 
gchcd                            for   office  work,  and   an   estimate   of   the 

I   any  particular  case  may   ho  had  upon  application. 

Should  an  applicant  de.-m  an  estimat-  •.  h«' 

will  ho  allowed  the  rijrht  of  appeal  to  the  General  Land 
Office  in  the  usual  manner. 

In  transmitting  such  an  appeal  the  Surveyor  General 
should  transmit  therewith  a  full  r.  : 

7  Should  the  office  work  in  any  case  amount  to 
more  than  the  estimate,  or  if  an  amended  older  is  issued, 
an  additio  It  will  he  required. 

8.  In  districts  when-  there  are  no  T'nited  states 
ou  should  deposit  with  the  nearest  assistant 
I  nited  States  treasurer,  or  depository,  and  in  all  cases  im- 
mediately forward  the  original  certificate  to  the  Serr.-tary 
of  the  Treasury  and  the  duplicate  to  the  Surveyor  General's 
office,  retaining  the  triplicate  for  your  own  use  and  secur- 
ity. Under  no  circumstances  will  the  deposit  ho  made  by 
the  Surveyor  <;en*ral.  (See  paragraph  5.  preceding.) 

'.».  An  application  for  an  amended  survey  order 
must  be  accompanied  with  a  statement  setting  forth  fully 
the  reasons  for  the  proposed  amendment  and  all  the  material 
facts  in  the  matter. 

10.  If,  after  having  obtained  a  survey  order,  you 
should  abandon  your  purpose  of  having  a  survey  made,  you 
can  apply  the  deposit,  less  the  amount  estimated  for  office 
expenses  already  incurred,  on  a  new  survey  if  one  is  desired. 


416  CIRCULAR  TO  APPLICANTS. 

11.  Upon    discovery    of   any    error    or    defect    in    an 
order  you  are  requested  to  return   it  to  the  Surveyor  <;«-n 
eral's   Office   for   correction   or   amendment. 

12.  If,   after   having   obtained   an    order   for   sur 
you   should  find   that   the  record  of   location   does   not   prac 
tically    describe    the    location    as    staked    upon    the    irround. 
you  should  file  a  certified  copy  of  nn  amended  location  cer- 
tificate,    correctly     describing    the    claim,     and    obtain    :m 
amended  unit  r  for  survey.     If  a  relocation  of  the  claim   is 
made  embracing  ground  not   included   in   the   original   order, 
or    other    material     change     is    made,    you    will     abandon    the 
original    number    of    the    order   for   survey,    and    a    new    order 
will    lu>   issued    iu    whirl)   a    number   in    the   current    series   will 
be   substituted. 

I.'!.  Tln«  i.nb  r  of  appr-'val  of  surveys  of  mineral 
claims  is  prescribed  by.Ceneral  Land  Office  circular  dated 
March  3,  follows  : 

"The  mining  survey  first  applied  for  shall  have  the 
priority  of  action  in  all  its  stages  In  tho  office  of  tin-  Sur 
veyor  General,  including  tbe  delivery  the:  any  other 

survey  of  the  same   ground   or  any   portion   thereof. 

"Tbe  Surveyor  General  should  not  order  or  author 
i/e  a  survey  of  a  claim  which  contlicts  with  one  previously 
applied  for  until  tbe  survey 'first  applied  for  lias  been  COO) 
pleted.  examined,  approved  and  platted,  and  tbe  plats  d" 
li  vered. 

"When  the  conflict  does  not  appear  until  tbe  Held 
notes  of  the  respective  surveys  are  returned,  then  the  survey 
first  applied  for  should  be  first  examined,  approved,  and 
platted,  and  the  plats  delivered  I  efore  tbo  Held  notes  of 
survey  last  applied  for  are  taken  up  for  examination  or  plats 
constructed. 

"When    the    survey    first    authorized    is    not    returned 
within  a   reasonable  period,  and  the  applicant  for  a  contlict 
ing  survey  makes  affidavit  that  he  believes   (statin-  the  r. -a 
sons  for  his  beliet *i    that  such  first  applicant  has  abandoned 
bis  purpose   of   bavin.-    a    survey  made,  or  is  deferring  it    for 
vexatious  purposes,   to   wit.   to  postpone  the  subsequent    ap 
plicant,    the    Surveyor    (General    shall    give    notice    of    such 
charges   to   such    first    applicant,    and    call    upon    him    for    an 
explanation    under    oath    of    the    delay.       He    shall    als. 
quire  the  mineral  surveyor  to  make  a  'full  statement  in  writ 
ing,   explanatory  of  the  delay;  and  if  the   Surveyor  General 
shall    conclude    that    good    and    sufficient    reasons    for    such 
delay  do  not  exist,  he  shall  authorize  the  applicant  for  the 
conflicting  survey  to  proceed   with   the   same:   otherwise    the 
order  of  proceedings  shall  not  be  changed. 

"Whenever  an  applicant  for  a  survey  shall  have  n-a 
son  to  suppose  that  a  conflicting  claimant  will  also  apply 
for  a  survey  for  patent,  he  may  give  a  notice  in  writing 
to  the  Surveyor  General  particularly  describing  such  con- 
flicting claim,  and  file  a  copy  of  the  notice  of  location  of 
such  conflicting  claim.  In  such  case  the  Surveyor  General 
will  not  order  or  authorize  any  survey  of  such  conflicting 
claim  until  the  survey  first  applied  for  has  been  examined. 
completed,  approved  and  platted,  and  the  olats  delivered." 


TO  APPLICANTS.  417 

1 4.     You   have   the  option   of   employing   any   United 
states  mineral  surveyor  in  the  district  to  execute  the  order 

irvey.  and  must  make  satisfactory  arrangements  with 
such  surveyor  for  the  payment  of  his  services  and  those  of 
his  assistants  in  making  the  survey,  as  the  United  States 
will  not  be  held  responsible  for  the  payment  of  the  same. 
The  duty  of  the  mineral  surveyor  in  any  particular  case 

-  \vh.-n  he  lias  .-xecuted  the  survey  and  returned  the 
same  to  this  office.  lie  is  not  allowed  to  prepare  for  the 
mining  Haimaiit  the  papers  in  support  of  an  application  for 
patent,  being  precluded  from  acting  either  directly  or  in- 
directly as  attorney  in  mineral  claims.  (Sec.  2334.) 

l."i.  You  are  advised  of  your  right  to  appeal  to  the 
Commissioner  of  the  General  Lund  Office  from  the  approval 
or  disapproval  of  the  survey  of  your  claim.  The  appeal 
must  lie  in  writing  or  in  print,  should  set  forth  in  brief 
and  clear  terms  th.  sp. ,  irtc  points  of  exception  to  the  ruling 
appealed  from  and  should  be  transmitted  through  the  Sur- 
ileneral's 


14 


418  SURVEYOR  GENERAL'S  CIRCULAR. 

SURVEYOR  GENERAL'S  CIRCULAR. 


The  following  circular  relating  to  expense  of  of- 
fice work  in  the  Surveyor  General's  Office  in  Colorado, 
dated  June  21,  1902,  is  still  in  force. 

In  accordance  with  paragraph  91,  General  Land  Office 
Circular  of  the  United  States  Mining  Laws,  approved  July 
20,  1901,  relating  to  the  expense  of  office  work  connected 
with  the  survey  of  mineral  claims,  which  autlmri/<>s  the 
Surveyor  General  in  each  district  to  require  a  deposit  for 
platting  and  other  office  work  for  mineral  surveys :  it  is 
directed,  the  same  having  been  approved  June  18/1002,  by 
the  General  Land  oilirr.  that  «m  and  after  July  1.  1902, 
the  estimated  cost  of  platting  and  other  office  work  in  con- 
nection with  the  survey  of  mineral  claims,  he  computed  as 
follows  : 

Charges  in  Surveyor  General's  Office. 

For  lode  claim $30.00 

For  placer  claim 

For  mill-site 30.00 

For  mill-site    included    in    one    survey 

with   a  lode  claim 20.00 

For  each  lode  claim  within   and    included 

in  the  survey  of  a  placer  claim.  .  .  .  20.00 
For  several  lode  locations  included  in 

one  survey,  the  first  location  named.  80.00 
All  other  locations  Included,  each....  L'.~i.nn 
For  several  placer  locations  included  in 

one  survey,  the  first  location  named.      35.00 
All    other   locations   included,   each....     30.00 
For  affidavit  of  $500  expenditure  of  im- 
provements, after  approval  of  survey.        5.00 
Should  an  amended  order  issue,  an  additional  depo 
will    be   required. 

W.  G.  LEWIS,  Surveyor  General. 


'APPLICATION  FOR  PATENT. 


The  following  pages  are  intended  to  contain  the 
forms  of  application  and  proceedings  to  obtain  pat- 
ent, in  the  order  of  time  in  which  the  several  papers 
should  be  made  and  filed. 

*For  many  valuable  suggestions  upon  points  covered 
by  this  book,  especially  in  this  chapter,  we  are  under 
obligations  to  E.  E.  Chase,  U.  S.  Mineral  Surveyor,  Denver, 
and  Milton  E.  Blake,  Chief  of  Mineral  Division  in  the  Sur- 
veyor General's  office ;  upon  geological  points  to  Kirby 
Thomas  and  Franklin  R.  Carpenter,  Ph.  D. 


Al'l'LlCATlON  FOR  PATENT.  419 

Request  for  Official  Survey. 

itizen  of  the  United  States,  or  one  who  has 
declared  his  intention  to  become  such,  or  a  corpora- 
tion chartered  within  the  Tinted  States,  being  the 
holder  of  the  possessory  title  to  a  lode  claim,  causes 
plication  for  an  official  survey  to  be  made  by  an 


**A.        AIMM.K  A  I K.\     KM;    M];|.|  |;     1'oK     -I    U\  I  V. 


rij 
I>i.\\i:i:.  November    1.    r.n»7. 
•</•'!/.  in  strict  of  Colnrntln.  lh-nr,r: 
Sin  : — You    are    requested    to    issue    nn    order    for    MM 
"f    th«>    mining   claim   of  C.  A.    \\'<>t<-»tt.    upon 
the  in    cr//>/>/<-    ('rt-fk    minim:    district, 

county.    ruihln    land    district.    Colorado. 
I     hrivwith    transmit     certified    cony    of    the    location 
(•«•!•«  i  iid  claim,  and  have  deposited  for  office  fees* 

on    saint-    .<:;<>    t.»    the    credit    ..f    the    t  reasurc-r    of    the    Tnitcd 
National    Hank    (U.    S.    I  icjn.siturv  i    with 
*1     that    dupli.-atc    ci-rt  ilicatc    !„>    t"m-\\  ardcd    to    you. 

•1     order     •  Min.     Snr..     at 

l)cnc(  i,  Colorado.  Yonrs  r»;sj>i-ct  fully. 

('.    A.    \Yi.i.. -IITT, 

Claimant. 

I'.y    i:n<ili'i    l>.    /'•  SalOj     I  tt>» -in  it. 
ddrc.vs    iof   Claimant  i    Itnuhli-r.  r,,l<n-(i<ln. 

i-lress    (of   Jittorncyi    :,<)',    i:<iuit>thl<     />'///*/.. 
Dfm 

I  h.  piiyiiuMit  nuMitioned  in  the  application  is  not 
by  draft  to  the  Surveyor  General  but  by  a  deposit -In 
a  bank  recognized  as  a  United  States  Depository. 
I  pon  payiu»'iit  to  such  bank  the  claimant  receives 
triplicate  certificates  of  deposit,  of  which  he  mails 
i  he  ori'iinnl  to  the  secretary  of  the  treasury  at  Wash- 
ington, the  Duplicate  he  mails  with  the  letter  (A) 
to  the  Surveyor  General  (or  the  bank  forwards  it) 
and  the  Triplimfc  he  retains. 

This  certificate  is  a  mere  receipt  for  money  and 
has  no  farther  value,  except  where  the  application 
is  withdrawn,  in  which  case  the  unexpended  balance 
will  be  allowed  to  apply  on  another  survey. 

**The  forms  for  placer  and  mill  site  applications  are 

substantially    the-   same 

*F«»r   costs   in    Surveyor   General's  office,  sec  p.  }18. 


420  APPLICATION  FOR  PATENT. 

In  reply  to  the  application  (A)  the  Surveyor 
General  mails  to  the  U.  S.  deputy  mineral  surveyor 
designated  therein  the 

B.     OIJDKI:  nui   SIKVKV. 

DEPARTMENT  <>r   TIM-:    INTI:KH>K. 
OFFICE  OF  U.  S.  SURVEYS:  <;I:M:K.\T 
DENVER,  COLO.,  November  3, 


E.    E.    Chase,    U.    8.    Mineral    Knrrcynr   for    the   Di*1ri< •(    of 

Colorado. 

SIR: — You  are  hereby  dir«<ir<l  t«>  survey  the  claim  of 
C.  A.  Wolcott,  upon  the  Bear  1<><1<>.  in   Cripple  Creek  mining 
district,  Teller  County,  < '<>!(. r;i<lo.     Tliis  survey  will  bo  fl- 
oated "Survey  No.  11..'M<>  I'm  hid  \-.\i\<]  district,"  ami  inn- 
made  in  strict  conformity  with   the  location   certificate 
amended  location  certificate)    dated  Jvty  28,  1902. 

\\.   0.   LEWIS, 
U.  S.   Surveyor  General  for  Colorado. 

With  the  order  3  is  enclosed  a  copy  of  the  loca- 
tion certificate  made  in  the  Surveyor  General's  office 
from  the  certified  copy  filed  by  applicant. 

The  numbers  of  the  survey  lots  were  formerly 
consecutive  in  each  mineral  district,  but  since  the 
abolition  of  mineral  districts  they  are  consecutive 
throughout  the  State,  beginning  with  No.  4,501,  with 
which  number  the  new  series  was  commenced  No- 
vember 30,  1886. 

Survey  to  Conform  to  the  Record. 

This  order  of  survey  "B"  being  received  by  the 
U.  S.  mineral  surveyor  designated  in  "A,"  he  must 
proceed  in  person  to  the  premises,  make  an  actual 
survey,  and  mark  each  post  with  the  number  of  the 
survey  and  the  number  of  the  corner. 

The  copy  of  location  certificate  mentioned  as  in- 
closed in  "A"  must  be  certified  by  the  recorder. 

The  surveyor,  in  making  his  official  survey,  must 
follow  the  lines  as  staked  upon  the  ground. 

Changing  Lines  After  Order  Received. 

The  Surveyor  General  will  not  allow  a  serious 
departure  from  the  lines  called  for  in  the  location 
certificate,  without  insisting  upon  the  filing  of  an 


APPLICATION  FOR  PATENT.  421 

amended  or  -elocation  certificate  in  the  office  of  the 
recorder  of  the  proper  county,  and  the  deposit  of  a 
itird  ropy  of  such  amended  record  in  the  Sur- 
•  »r  General's  office,  and  when  such  certified  copy 
has  been  filed  an  amended  order  of  survey  issues, 
in  which,  if  <///»/  netc  tiround  has  been  acquired,  the 
<>r\<iinal  number  of  the  survey  is  abandoned  and  a 
new  number  in  the  current  series  xititstituted.  An 
additional  fee  of  $5  is  charged  for  the  amended 
order,  besides  the  cost  of  additional  labor,  if  any, 
imposed  on  the  Surveyor  General's  office. 

Amending  Record  After  Order  Received. 

If  tin-  certificate  be  indefinite,  or  if  the  end  lines 
are  not  parallel,  or  if  not  properly  tied,  or  if  the  cer- 
tifirate  be  without  date  or  otherwise  irregular,  it  will 
be  returned  for  amendment.-  Care  in  the  first  in- 
stance will  obviate  delays  on  such  grounds. 

For  form  of  amended  location  certificate  see 
page  129. 

In  surveys  upon  old  lodes  (before  May  10,  1872) 
whose  location  certificates  were  not  supposed  to  call 
for  course  or  monument,  iln  deputy  is  presumed  to 
make  his  official  survey  according  to  the  location 
ami  original  claim  of  the  locator,  but  practically  it  is 
made  wherever  it  may  be  supposed  to  cover  the  vein, 
or  wherever  vacant  ground  can  be  found  to  include 
in  the  survey. 

In  almost  all  cases  of  early  location  (and  In 
many  recent  ones)  it  is  advisable  to  make  a  formal 
relocation  before  asking  for  order  for  survey.  This 
may  save  time  in  the  Surveyor  General's  office  and 
prevent  fatal  results  in  resisting  adverse  claims. 

For  instructions  as  to  making  survey  on  the 
ground,  see  LAND  OFFICE  RULES,  pp.  389,  405. 

Delay  to  Proceed  With  Survey. 

The  'first  applicant  has  priority  as  long  as  he 
proceeds  with  diligence.  When  he  fails  to  perfect, 
to  the  injury  of  a  party  desiring  to  proceed,  the  steps 
to  be  taken  by  the  latter  are  indicated  in  Sec.  13  of 
the  Circular,  p.  416. 


APPLICATION  FOR  PATENT. 


\ 
\ 

Sup.  NO.  H3io 
BEAR    LOO£ 

RvEyea    Wov.  6t  IOO7 

E.CMASE. 


xo.  ii::i'».     /•/  /:/••/. o  LAND  ins-run" 


APPLICATION   FOR  PATENT.  423 

The  survey  being  complete  the  surveyor  makes 
11  ml  forwards  to  the  Surveyor  General  a  diagram  of 
the  lode,  giving  its  corners,  courses,  distances,  ties, 
conflicts,  ad  joiners  and  improvements,  which  is 
l-:ii own  as 

C.     Tin     n:i:i  i\i!\  \I:Y    n  \\. 

The  plat  made  by  the  surveyor  was  formerly 
treated  as  the  official  plat  of  the  claim,  from  which 
the  connected  plat  of  all  claims  kept  by  the  Surveyor 
General  was  made,  but  under  present  practice  the 
surveyor's  plat  is  only  treated  as  a  correction  to  the 
field  notes,  all  official  plats  now  being  made  in  the 
office  of  the  Surveyor  General. 

Along  with  this  diagram  or  preliminary  plat 
the  surveyor  forwards  to  the  Surveyor  General 
his 

D.       FIELD    NOT  I  B, 

the  following  form  being  arranged  to  illustrate  the 

Unary  complications: 
Survey   No.   ll.::i"  Pueblo  Land  District. 

1  --11:1.0    NOTES 

of  the  survey  of  the  claim  of  0.    \.    \\'olcott,  known  as  tin- 
in   <'>ii>iile  Creek  mining  district.    I,  ll>,-   r.mnty. 

<  'ulo! 

unship    ir»  South,  Range  69  West. 

Sur\  «•>«•<!    nml.  r    instructions   dated   November  3,  19ffl, 
\  .   s.   Mi M. -ml  Surveyor. 

Sni-v.y  ii.^'.-in   \ '- 1-,,,,!,,,  i,.  I'.urt,  and  completed   Vopffn 

Address  of  claimant  :     C.  A.  WOLCOTT,  Houlder,  Colo- 
rado. 

Sll;vi;\     N...     li::iu. — BEAR    LODE. 

Beginning  at   Cor.    N<>.    1. 

Identical  with  Cor,   N«».   1   of  the  location. 

A  spruce  post.  5  ft.  long,  4  ins.  square,  set 
2  ft.  In  the  ground,  with  mound  of  stone,  marked 

in:; in   whence 

Tin-  \\     V4  cor.  Sec.  22,  T.  ir.  s    K.  69  W.  of 
tin-  <;th    rrin.-ii.al    Mt-ridian,  bears  S.   79°    34'  W. 
2    ft 

<  'or.    No.    1,    Gottenburg    lode    (unsurveyed), 
;  .ttson,    claimant,    bears    S     40      -'•'    W. 

A  pine  12  ins.  dia.  blazed  and  marked   \\.  T. 
1-11310  bears  S.  7°   25'  E.  22  ft. 

Mt.    IMsgnh    IM'.-H-S    S.    80°    l.r>'   W. 


424  APPLICATION  FOR  PATENT. 


Bull   Hill   bears  N.   80°   W. 

Thence   S.   24°    45'   W. 
Va.    15°    12'   E. 

1242.  To  trail,  course  N.  W.  and  S.   E. 

1440.28       Intersect  line  1-4,   Sur.  No.  2560,   at  N.   38°   52' 

W.   76.6  ft.  from  Cor.  No.  1. 

1500.  To  Cor.  No.  2.    Identical  with  Cor.  No.  2  of  the 

location. 

A  granite  stone  25x9x6  ins.  set  18  ins.  in 
the  ground  chiseled  2-11310,  whence 

Cor.  No.  I,  Sur.  No.  2560,  Carnarvon  lode, 
David  Davis,  <t  ul.,  claimants,  bears  N.  88°  E. 
61.6  ft. 

North  end  of  bridge  over  Grassy  gulch  bears 
N.  65°  15'  W.  1250  ft. 

Thence    N.    65°    15'    W. 
Va.   15°    20'   E. 

300.  To    Cor.    No.    3.     Identical    with    Cor.   No.    3    of 

location. 

A  cross  at  corner  point,  and  3-11310  chiseled 
on  a  granite  rock  in  place,  20x14x6  ft.  above  the 
general  level,  whence 

Cor.  No.  2,  Sur.  No.  2560  bears  S.  72°  45'  E. 
325  ft. 

A    spruce    16    ins.    dia.    MM/.M!    and    marked 
It.    T.    :i-li:;iO    brars   S.   58°    W.    18   ft. 
Thence  N.   24°   45'    i: 
Va.  ir,     W  I-:. 
218.  Intersect  lino    11.  Sur.  No.  2560  at  N.  38°  Hi!'  \V. 

396.4  ft.  from   Cor.   No.   1. 
:*71.74       To  trail,  course  N.  W.   and   S     I 
1145.62       Intersect  line  2-3,  Gottenburg  lode,  at  N.  25°  50' 

W.  76.26  ft.  from  Cor.  No.  2. 

1500.  To  Cor.  No.  4.     Identical  with  Cor.  No.  4  of  the 

location. 

A  pine  post  4.5  ft.  long,  5  ins.  square,  set 
one  foot  in  tne  ground,  with  mound  of  earth  and 
stone,  marked  4-11310  whence 

A   cross   chiseled   on   rock   in   place,   marked 
B.  R.  4-11310  bears  N.  28°   10'  E.  58.9  ft. 
Thence   S.   65°   15'  E. 
Va.   15°   12'  E. 
28.5         Intersect  line  4-1,  Gottenburg  lode,  at  N.  25°  r>r>' 

W.   285.13  ft.  from  Cor.   No.   1. 
300  To  Cor.  No.  1,  the  place  of  beginning.* 

The  identity  of  the  claims  conflicting  with  the  Bear 
Lode  as  herein  described,  was  determined  by  finding  corners 
1,  2  and  3  of  Survey  No.  2560,  and  corners  1  and  2  of  the 
Gottenburg  lode  upon  the  ground. 

*Adjoining  claimants  are  mentioned  as  they  are 
reached  in  the  notes,  as  they  ambit  the  claim. — Rule  149 


APPLICATION  FOR  PATENT. 

Area. 

Total  area  of  Bear  lode 10.33     acres 

Less  area  in  conflict   with 

Sur.   No.    2560 956  acre 

Gottenburg    lode 1.363  acre     2.319  acres 


Net  area  Bear  lode  claimed 8.011  acres 

Location. 
This  claim  is  located  in  the  W.  %   Se< -.   _'_'.  T.    15  S. 

K.    '••!»    W. 

Expenditure  of  Five  Hundred  Dollars. 

I  certify  that  the  value  of  the  labor  and  improve- 
ments upon  this  claim  placnl  !ln>n><>n  by  the  claimant  and 
his  grantors,  is  not  less  than  five  hundred  dollars,  and  that 
said  improvements  consist  of 

The  discovery  shaft  of  the  Bear  lode,  6x3  ft.   10  ft. 
deep  in  earth  and  rock,  which  bears  from  Cor.  No.  2  N.  4° 
_'  ft. 

Value  $80. 

An  incline  7x5  ft.  45  ft.  deep  in  coarse  gravel  and 
rock,  timbered,  course  N.  58°  15'  W.  dip  62°,  the  mouth  of 
which  bears  from  Cor.  No.  2  N.  19°  37'  E.  1025  ft. 

Value  $550. 

A  log  shaft-house  14  ft.  square,  over  the  discovery 
shaft. 

Value  $100. 

Two-thirds  interest  in  a  tunnel  6.5x5  ft.  running  due 
west  835  ft.,  timbered,  the  mouth  of  which  bears  from  Cor. 
_'   N.   51°    15'   E.   837   ft. 

This  tunnel  is  in  course  of  construction  for  the  de- 
velopment of  the  Bear  lode  and  also  for  the  Carnarvon  lode, 
Survey  No.  2560,  David  Davis,  et  a/.,  claimants,  the  rem.iiu 
ing  one-third  interest  therein  having  already  been  included 
in  the  estimate  of  five  hundred  dollars  expenditure  upon  the 
latter  claim. 

Total    value    of    tunnel,    $13,000. 

A  drift  6.5x4  ft.  on  the  Bear  lode,  beginning  at  a 
P<,iin  in  tunnel  550  ft.  from  the  mouth,  and  running  N.  20° 
•_•"'  i:.  195  ft.  thence  N.  54°  15'  E.  40  ft.  to  breast. 

Value  $2,800. 

Other  Improvements. 

A  log  cabin  35x28  ft.,  the  S.  W.  corner  of  which 
bears  from  Cor.  No.  3  N.  30°  44'  E.  650  ft. 

Said  cabin  belongs  to  the  claimant  herein. 

An  adit  6x4  ft.  running  N.  70°  50'  W.  100  ft.,  the 
mouth  of  which  bears  from  Cor.  No.  1  S.  58°  12'  W.  323  ft., 
belonging  to  Neals  Mattson,  claimant  of  the  Gottenburg  lode. 


426  APPLICATION  FOR  PATENT. 

Instrument. 

The  survey  was  made  with  a  Buff  d  Bcrger  transit 
with  Smith's  solar  attachment.  The  courses  were  deflected 
from  the  true  meridian  as  determined  by  solar  observations. 
The  distances  were  measured  with  500  and  100  ft.  steel 
tapes. 

MEMORANDA    AS     TO    CHAINMEN,    ETC.       (PART    OF    "D".) 

A  list  of  the  names  of  the  individuals  employed  by 
E.  E.  Chase,  United  States  Mineral  Surveyor,  to  assist  in 
running,  measuring,  and  marking  the  lines,  corners  ;md 
boundaries  described  in  the  foregoing  field  notes  of  tli<- 
survey  of  the  mining  claim  of  C.  A.  Wolcott,  known  as  the 
Bear  lode,  and  showing  the  respective  capacities  in  which 
they  acted. 

L.    E.    Lemen,   Chainman. 

Otto   Shatz,  Axman. 

AFFIDAVIT    OF    ASSISTANTS. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

We,  L.  E.  Lemen  and  Otto  Shatz,  do  solemnly  s\v«-;ir 
that  we  assisted  E.  E.  Chase,  United  States  Mineral  Sur- 
veyor, in  marking  the  corners  and  surveying  the  boundaries 
of  the  mining  claim  of  C.  A.  Wolcott,  known  as  the  H<  nr 
lode,  represented  in  the  foregoing  field  notes  as  having  been 
surveyed  by  said  Mineral  Surveyor  and  under  his  direction 
and  that  said  survey  has  been  in  all  respects,  to  the  best  of 
our  knowledge  and  belief,  faithfully  and  correctly  executed, 
and  the  corner  and  boundary  monuments  established  accord 
ing  to  law  and  the  instructions  furnished  by  the  United 
States  Surveyor  General  for  Colorado. 

L.     K.     I.EMIIN.    Chainman. 
OTTO    SHATZ,   Axman. 

Subscribed  and  sworn  to  by  the-  above  named  p.  i 
before   me   this  8th   day   of  November.    I'.HI? 

ll<  nrii    //.    Clurk. 
I  SEAL.]  Notary    Public. 

FINAL    AFFIDAVIT    OF    U.     8.     MINERAL    SURVEYOR. 

Part  of  ' •/'.'• 

I,  Edwin  E.  Chase,  U.  S.  mineral  surveyor,  do 
solemnly  swear  that,  in  pursuance  of  instructions  received 
from  the  United  States  Surveyor  General  for  Colorado, 
dated  November  3,  1907,  I  have,  in  strict  conformity  to  the 
laws  of  the  United  States,  the  official  regulations  and 
instructions  thereunder,  and  the  instructions  of  said  sur- 
veyor general,  faithfully  and  correctly  executed  the  survey 
of  the  mining  claim  of  C.  A.  Wolcott,  known  as  the  Bear 
lode,  situate  in  Cripple  Creek  Mining  District,  Teller  County, 
Colorado,  in  Section  t%,  Township  ]STo.  15,  S.  Range  No.  69  IV., 
designated  as  Survey  No.  11,310,  as  represented  in  the  fore- 
going field  notes,  which  accurately  show  the  boundaries  of 


APPLICATION  FOR  PATENT.  1-7 

said  mining  claim  as  distinctly  marked  by  monuments  on  the 
irround.  ami  described  in  the  attached  copy  of  the  location 
certificate,  which  was  received  by  me  from  the  surveyor 
;al  with  said  instructions,  and  that  all  the  corners  of 
said  survey  have  been  established  and  perpetuated  in  strict 
accordance'  with  the  law.  official  regulations  and  instructions 
thereunder:  and  1  d<>  further  solemnly  swear  that  the  fore- 
U"in.ur  are  the  true  and  original  field  notes  of  said  survey 
and  my  report  therein,  and  that  the  lahor  expended  and 
improvements  made  upon  said  mining  claim  by  claimant  or 
his  -rantors  are  as  therein  fully  stated,  and  that  the  char 
acter.  extent,  location  ami  itemixed  value  thereof  are  speci- 
fied therein  with  particularity  and  full  detail,  and  that  no 
portion  of  said  labor  or  improvements  so  credited  to  this 
claim  has  been  included  in  the  estimate  of  expenditure  upon 
any  other  claim. 

EDWIN    K.    ( 'ii  AST. 
U.  S.  Mineral  Surveyor. 

Subscribed  and  sworn  to  by  the  said  Etlirin   /     r 
I      s.    mineral    surveyor,    before    me.    a    notary    public,    this 
mil,  member,   ii>07.  //<  »</•»/  //.  rmrk, 

[SEAL.  |  Notary   Public. 

The  Preliminary  Plat  "C"  and  Field  Notes  "D" 
containing,  besides  what  are  strictly  the  Field  Notes, 
aiso  the  memoranda  of  improvements,  list  of  helpers, 
with  certificate  and  affidavit  as  above  given,  are 
then  forwarded  to  the  Surveyor  General,  who  com- 
pares the  plat,  reviews  the  notes,  etc.,  and  if  errors 
appear,  as  they  often  do,  or  if  he  can  not  make  the 
connections  agree  with  his  "connected  plat,"  they 
are  returned  for  correction;  but  if  correct,  the  Field 
Notes  are  endorsed  as  follows: 

E.       APPROVAL    «»!     BUBVBT, 

KTMBNT    OF    TJIF.     INTERIOR. 
(Mlice  of   the    1'.   S.   Surveyor  C.-n.-ral. 

DENVER,  COLO.,  Dec.   11,   I!»u7. 

I.    11     -  surveyor  General  for  Colorado. 

do    hereby    certify    that    the   foregoing   and   hereto   attached 

field  notes  and  return  of  the  survey  of  the  mining  claim  of 

C.  A.    \Vnlrntt.  known  as  the  Bear  lode,  situated  in  Cripple 

v   Mining  District,    Teller  County,   Colorado,   in   fbctioH 

hip  Xo.  15  8.,  Range  ~So.  69  W.  designated  as  Sur- 

v.y    NO.     n::in,    executed    by    E.    E.    Chase,    U.    S.    mineral 

surveyor.  6,    1907,    under    my    instructions    dated 

-t,    1907,    have    been    critically    examined    and    the 

tsar?/   corrections   and  explanations  made,   and   the   said 

Held    notes   and    return,    and    the   survey    they   describe    afe 


428  APPLICATION  FOR  PATENT. 

hereby  approved.  A  true  copy  of  the  copy*  of  the  location 
certificate  filed  by  the  applicant  for  survey  is  Included  in 
the  field  notes. 

W.  G.   LEWIS, 
U.   S.   Surveyor  General   for   Colorado. 

The  field  notes  "D"  endorsed  with  the  official 
approval  "E"  are  then  bound  and  kept  permanently 
for  reference  in  the  Surveyor  General's  office  after 
he  has  caused  to  be  made  from  them 

F.       THE    FINAL    PLAT 

of  which  the  original  is  retained  in  the  Surveyor 
General's  office,  one  copy  is  forwarded  by  the  Sur- 
veyor General  to  the  proper  local  land  office  and  two 
copies  are  forwarded  to  the  mineral  surveyor. 

The  original  and  each  copy  of  the  final  plat  "F" 
is  certified  by  endorsement  thereon,  as  follows: 

G.       SURVEYOR      GEMUAI^       APPROVAL      OF       SURM.Y       A\l> 
CERTIFICATE    OF    $500    IMPROV!   MI 

Rite  of  (amended)  location,  July  28,  1902.  Mineral 
Snrv.-y  NM.  ii::m.  1'in'Un  land  district. 

Plat  of  the  claim  of  C.  A.  Wolcott,  known  as  the  Bear 
lode,  <'>-ii>i>h  r/rrA  mining  district.  Teller  County,  Colorado, 
containing  an  aiva  of  S.IIM  acres.  Scale  of  200  feet  to  th.- 
inch.  Variation  1  r,  -jo'  east.  Surveyed  by  /  /'.  chase. 
TT.  S.  Mineral  Surveyor.  \<».  »;.  /907. 

The  original  liHd  notes  of  the  survey  of  tho  minim: 
claim  of  C.  A.  U  <>!<•>,( t.  known  as  the  Bear  lode,  from  which 
this  plat  has  been  made  under  my  direction,  have  been  ex 
amined  and  approved,  and  are  on  file  in  this  offlcr.  :m<1  I 
hereby  certify  that  they  furnish  such  an  accurate  descrip- 
tion of  said  mining  claim  as  will,  if  incorporated  into  o 
patent,  serve  fully  to  identify  the  premises,  and  that  such 
reference  is  made  therein  to  natural  objects  or  permanent 
monuments  as  will  perpetuate  and  fix  the  locus  theivnf. 
I  further  certify  that  five  hundred  dollars'  worth  of  laboi 
has  been  expended  or  improvements  made  upon  said  mining 
claim  by  claimant  or  his  grantors  and  that  said  improve 
ments  consist  of  1h<  J/.vro/vr//  .thnft.  an  incline,  a  shaft 
house,  an  interest  in  a  tunnel,  and  a  drift,  as  appears  by 
the  affidavit  of  the  mineral  surveyor;  that  the  location  of 
said  improvements  is  correctly  shown  upon  this  plat,  and 
that  no  portion  of  said  labor  or  improvements  has  been 
included  in  the  estimate  of  expenditures  upon  any  othei 
claim. 

*This  is  the  copy  mailed  to  the  surveyor  with  the  or- 
der B,  and  has  now  been  returned  attached  to  the  field  notes. 


APPLICATION  FOR  PATENT. 

And  I  lurth.  i-  certify  that  this  is  a  correct  plat  of 
said  minin.i:  claim  made  in  conformity  with  said  original 
ti.-ld  notes  of  thf  survey  thereof,  and  the  same  is  herehy 
approved  w.  <;.  LKWIS. 

U.  S.   Surveyor  General  for  Colorado. 
!       B     Surveyor   Oueral's   Office,   Denver,   Colorado. 

Dee,  11,  1907. 

When  the  improvements  are  completed,  pending 
publication,  the  Surveyor  General  makes  a  separate 
certificate.— fiec  P.  /'/;. 

The  amount  of  improvements  is  to  be  found  by 
the  Surveyor  General  cr  his  deputy,  or  from  the  tes- 
timony of  witnesses. — U.  A<?.  v.  King,  83  F.  188.  See 
L.  O.  Key.  ',:>. 

Along  with  two  copies  of  the  diagram  "F,"  with 

•  •ndorsement  "G"  the  Surveyor  General  forwards 
to  the  surveyor  for  claimant  the 
H.     U:\NM  i;in     or     MMM     NOTKS,    otherwise    called 

"APPROM  P     MUD     No  IKS." 

This    instrument    "H"   is   verbatim   the  same  as 
I)      including  all   its  exhibits,  but  not  the  Surveyor 
General's  certificate  "G."     Instead  of  the  certificate 
<;     such  transcript   is  certified  as  follows: 

I.      SUKVETOI         «,IMI:\I'-         MI:IIM<\II:        TO        TRAN- 
SCRIPT "H." 

OF    THI:    INTKKIOR. 
Office  of  the  U.  S.  Surveyor  General. 

Denver,  Colorado,  Dec.  //,  1907. 
I.   H     '  S.  Surveyor  General  for  Colorado, 

du   hrrel.y   entity   th.it    the  foregoing   transcript  of  the  field 

B,    n-nirn    and    approval    of    the    survey    of   the    mining 

d.-iiin   "t   C.    L    }\'ni,-»itt.  kn«>\vn  as  the  Bear  lode,  situate  in 

/'/•//•  niiiiini:    «lisiri«-t.    'l>l!>r    c.Miniy.    ('(.lorado,    in 

/.-..  >     It'iiu/e  ATo.  69  irrx/  nth   r.  M. 

MMS  in-. -n  («.ii.>.  t!\  rnpiiMl  from  the  originals  on  file  in  this 
n!!ir»- :  that  <:\'n\  ti.-ld  notes  furnish  such  an  accurate  descrip- 
tion ..r  said  niinin.ir  rlaim  as  will,  if  incorporated  into  a 
pan-in.  s«-rv«*  to  t'nily  iilciitit'v  tho  premises,  and  that  such 
i  fft  I't-nr*-  is  made  therein  to  natural  objects  or  permanent 
momum-nts  as  will  p<-rprt nate  nnd  fix  the  locus  tlx-n'of. 

And  I  further  certify  that  five  hundred  dollars' 
worth  of  lalmr  has  heen  expended  or  improvements  made 
upon  said  mining  claim  l.y  claimant  or  his  grantors,  and 
that  said  improvements  consist  of  the  discovery  shaft,  an 


430  APPLICATION  FOR  PATENT. 

incline,  a  shaft  house,  an  interest  in  a  tunnel,  and  a  drift. 
and  that  no  portion  of  said  labor  or  improvements  has  IM  «-n 
included  in  the  estimate  of  expenditures  upon  any  other 
claim. 

I  further  certify  that  the  plat  thereof,  filed  •  in  th.» 
r.  S.  land  office  at  Pueblo,  is  correct  and  In  conformity 
with  the  foregoing  field  notes. 

W.  G.  LEWIS. 
United  States  Surveyor  General  for  Colorado. 

These  matters  are  all  preliminary  to  the  appli- 
cation for  patent  proper  which  is  made  to  the  local 
land  office,  these  proceedings  in  the  Surveyor  Gen- 
eral's office  being  necessary  because  each  lode  claim 
must  be  separately  surveyed,  whereas  in  case  of 
agricultural  land  a  party  simply  enters  upon  a  par- 
ticular quarter  section  which  has  been  already  sur- 
veyed and  platted. 

Delivery  of  Papers  to  the  Attorney. 

The  above  transcript  "H"  received  from  the 
Surveyor  General  which  is  generally  termed  the  "Ap- 
proved Field  Notes,"  the  surveyor  then  delivers, 
along  with  the  plats  or  diagrams  received  from  the 
same  office,  to  the  attorney  for  the  claimant,  who  is 
supposed  to  supervise  the  signing  and  filing  of  all 
the  subsequent  papers,  and  takes  charge  of  the  ap- 
plication from  this  point,  although  in  fact  the  fur- 
ther papers  and  the  superintendence  of  the  posting, 
etc.,  are  frequently  left  in  charge  of  the  Surveyor. 

Respective  Duties  of  Surveyor  and  Attorney. 

The  U.  S.  Mineral  surveyors  are  not  allowed  to 
act  as  attorneys. — Rule  1>$.  The  surveyor's  services 
seem  properly  to  end  with  the  preparation  of  papers 
for  the  Surveyor  General's  office  and  the  reception  of 
papers  from  that  office.  These  latter  he  turns  over 
to  the  attorney,  who  makes  out  or  supervises  all  pa- 
pers intended  for  the  land  office.  The  surveyor's 
aid  should  not,  however,  be  discarded  pending  the 
application,  as  with  many  of  the  forms  he  is  mere 
familiar  than  attorneys  generally  are.  The  profes- 
sion ought  not  to  object  to  surveyors  filling  out  the 
ordinary  blanks,  especially  in  cases  where  no  adverse 


APPLICATION  FOR  PATENT.  431 

claim   Is  expected,  nor  to  their  attending  to  posting, 
publication,   proofs   of   citizenship,   etc.,   if  they   will 
not  attempt  to  make  out  the  location  and  relocation 
rt'rtMiratfs — which   are  strictly  legal   papers — the  in- 
terference of  the   surveyors   in  these  matters  gener- 
ally   leaving    applicants    in    a    position    where    they 
(.usly   need   an  attorney's   advice,   if  not  already 
late  to  be  of  service.     And  in  case  of  land  office 
test    any    intrrt'nviMv   by   the  surveyor   would   be 
rflicious  and   reprehensible. 

The  claimant  or  his  attorney  then  prepares  four 
copies  of     K:"  one  for  posting  on  the  claim,  one  to 
:  u ached   to   proof  of  posting,  one  for  publication 
in  newspaper  and  one  for  posting  in  Land  Office. 

K.       NOTICE    OF    APPLICATION    FOR    V.    8.    PAT1  \  I. 
Survey    No.    11310. 

U.  S.  LAND  OFFICK.  /'//<>,/</.  December  15,  1907. 

lice  is  hereby  given  that -in  pursuance  of  the  Act 
•  •ogress  appr.-vd    May    1<>.    is?'-1.   U.    .\ .    \\'nimttf  whose 
postoffice  is  H>  ha*   made  application  for  a 

nt  for  1500  linear  feet   on   the  Bear  lode,   bearing  gold 
same  i.c-in;:  :;«;:,  tv,-t   southwesterly  and  1135 
northeasterly   from   <Ii-.-iiv.-ry    shaft    thereon,  with   sur- 
face   ground    300    feet     in    width.    situate    in    Orw\ 
mining    <!;  '•'•  ''    <'"uniy.    Stale    of    <  '..lot-ado,    and    de- 

..1  l.y  the  oilirial  pint  :ni. I  l.y  the  Hi-Id  notes  on  tile  in 
tli.-  office  of  the  register  of  Pueblo  land  disuirt.  < 'nloi  ;id... 
as  follows, 

Beginning  at    r..rn«-r    N...    1.    \\hrnc.'    ilu>    \V.    U    cor. 
f  the  6th  Principal   Meridian, 
;'   \\ .    1878*2   f»«pt. 
Cor.     No.     i.     i  Jot  t.-nl.uru     lnd«>     i  uiisui-v.-ycd  i      Neals 

aininnt.    l  \V.    187.67  ft. 

Thence  S.  24C    »:,'  \v.    1600   ft   to  tor.   No.  '_'.   whence 
i  narvon  lode,  bears  N.  88°    E. 

81.6  ft     Tn>  n  i.V  W.  300  ft.  to  cor.  No.  3.    Thence 

_4°   45'   E.    1500  ft.   to  cor.   No.   4.     Thence   S.   65°    15' 
"0  ft.  to  cor.  No.  1,  the  place  of  beginning;  containing 
8.011  acres    (exclusive  of  survey  No.   2560  and  the  Gotten- 
hurg  lode),  and   forming   n   portion   of   the   west    %   section 
n   Township   ir,  s     Ranee  69   \v.  of  the  Sixth  Principal 
Meridian.       The    names    of    the    adjoining    and    conflicting 
claims  as  shown  by  the  plat  of  survey  are  the  Gottenburg 
on  the  northwest  and  the  Carnarvon  lode  on  the  south. 
Witness:  C.   A.  WOLCOTT. 

John  C.   ClurJ:. 
&.  F.  Pinson. 


432  APPLICATION  FOR  PATENT. 

Naming  Adjoining  Claims. 

The  Regulations  (Rule  39)  require  the  notice  to 
give  "the  names  of  adjoining  and  conflicting  claims 
as  shown  by  the  Plat  of  Survey" — 29  L.  D.  250 — and 
by  Rules  38  and  149,  all  conflicts  with  surveyed 
claims,  and  with  unsurveyed  claims  intended  to  be 
excluded,  are  required  to  be  shown  in  the  field  notes. 

One  of  the  notices  "K"  should  be  at  once  posted 
on  the  claim,  along  with  one  of  the  certified  dia- 
grams received  from  the  Surveyor  General,  the  two 
papers  being  loosely  attached,  or,  as  more  usual, 
placed  side  by  side,  in  some  conspicuous  place  on  the 
claim  (usually  at  the  discovery  shaft)  in  presence 
of  two  persons  who  attach  their  signatures  as  shown 
upon  form  "K." 

Another  of  the  notices  "K"  is  attached  to 

L.      PROOF     OF     POSTING     NOTICE     AND     DIAGRAM     o\      illi 
CLAIM. 

Si  MI;  OP  COLORADO,  Teller  County  :  ss. 

John  C.Clark  and  B.  F.  Pinx<m .  ••.-n-h  for  himself.  and 
not  one  for  the  other,  being  first  duly  sworn  according  to 
law,  deposes  and  says,  that  he  is  a  citizen  of  the  United 
States,  over  the  age  of  twenty  <>n.>  year*,  :ni«l  \\.MS  pi-. 
on  the  15th  day  of  December.  A.  I  >.  WFL  \\hen  a  plat  repre- 
senting the  claim  of  C.  A.  \\»l,,:tt.  .-mil  •  •••rtitied  MS  rorrert 
by  the  United  States  Surveyor  (ienernl  of  Colorado,  and 
designated  by  him  us  lot  N«».  11. .".!<>  together  with  a  notice 
of  the  intention  of  said  (/.  A.  \\'nin,it  i<>  :»ppl.v  for  a  patent 
for  the  mining  claim  and  premises  so  platted  was  posted 
in  a  conspicuous  place  upon  said  mining  claim,  to  wit  : 
upon  the  outside  of  the  door  of  the  shaft  house  at  the 
discovery,  where  the  same  could  be  easily  seen  and  ex- 
amined. A  copy  of  the  notice  so  posted  upon  said  claim  is 
herewith  attached  and  made  a  part  of  this  affidavit. 

Jony   C.   CLARK. 
B.   F.    PINSON. 

Subscribed  and  sworn  to  before  me  this  15th  day  of 
December,  A.  D.  1907,  and  I  hereby  certify  that  I  consider 
the  above  deponents  credible  and  reliable  witnesses,  and 
that  the  foregoing  affidavit  and  notice  were  read  by  each 
of  them  before  their  signatures  were  affixed  thereto,  and  the 
oath  made  by  them. 

[SEAL.]  Henry  Moody,  Notary  Public. 


APPLICATION  FOR  PATENT.  433 

The  form  "L"  is  subscribed  by  at  least  two  post- 
ing witnesses.  The  applicant  does  not  sign  it,  and 
should  not  be  one  of  the  two  witnesses. 

The  third  notice  "K,"  signed  by  the  applicant, 
but  not  by  the  witnesses,  goes  with  the  second  of 
the  plats  received  from  the  Surveyor  General  (page 

.  when  it  is  sent  with  the  firfct  set  of  papers  to 
the  land  office,  where  the  register  attaches  his  at- 
testing signature,  and  it  will  remain  posted  in  the 
land  office,  while  its  fellow  notice  and  plat  are  stand- 
ing on  the  claim  during  the  period  of  publication. 

The  next  -paper  to  be  prepared  is  the 

M.      APPI.M    \rin\    FOR  PATENT. 

i:  OF  COLORADO,  Teller  County  :  ss.  . 

Application  for  patent  for  the  Bear  Lode  Mining 
<  l.iiin.  To  the  K.^ist.-r  and  Receiver  of  the  U.  S.  Land 
Office  at  Pueblo,  Colorado : 

C.  A.  \\oh-ntt.  whose  postofflce  address  is  Boulder, 
Colorado,  being  duly  sworn,  according  to  law,  deposes  and 
says :  that  in  virtue  of  a  compliance  with  the  mining  rules, 
regulations  and  customs,  by  himself  (nnd  his  grantors)  be. 
the  applicant  for  patent  herein.  h:is  !>»•.•. .m«»  th»«  owner  of 
and  is  in  the  actual,  quiet  and  undisturbed  possession  of 
1500  linear  feet  of  tli»'  H<  nr  vein,  lode  or  deposit,  bearing 
gold  and  silver,  together  with  surface  ground  300  feet  in 
width,  for  the  convenient  working  thereof  as  allowed  by 
local  rules  and  customs  of  miners,  said  mineral  claim,  vein, 
lode  or  deposit  nnd  surface  ground  being  situate  in  Cripple 
/;  mining  district.  County  of  Teller,  and  State  of  Colo- 
rado, as  more  particularly  set  forth  and  described  in  the 
official  field  notes  of  survey  thereof,  hereto  attached,  dated 
December  11,  1007,  and  in  the  official  plat  of  said  survey, 
now  posted  conspicuously  upon  said  mining  claim  or  prem- 
ises, a  copy  of  which  is  filed  herewith.  Deponent  further 
states  that  the  facts  relative  to  the  right  or  possession  of 
himself  to  said  mining  claim,  vein,  lode,  or  deposit  and 
surface  ground  so  surveyed  and  platted,  are  substantially 
as  follows,  to  wit :  The  Bear  lode  was  discovered  on  or 
about  the  fourth  day  of  July,  A.  D.  1897,  by  James  A. 
McFadden,  who  afterwards,  and  before  the  twenty-eighth 
day  of  July,  A.  D.  1897,  completed  a  location  of  the  same 
as  a  mining  claim  of  the  length  and  width  aforesaid,  having 
substantially  located  the  same  and  otherwise  complied  with 
all  local  rules  and  regulations,  the  laws  of  the  State  of 
Colorado  and  of  the  United  States  relating  to  mining  claims. 

The  said  discoverer  and  locator  conveyed  all  his 
interest  in  the  claim  to  Chas.  O.  Baxter  and  Frank  M. 
Taylor,  who  by  divers  intermediate  conveyances  transferred 
the  same  to  applicant,  who  thereupon  took  possession  and 


434  APPLICATION  FOR  PATENT. 

is  the  sole  present  owner,  all  of  which  will  more  fully  ap- 
pear by  reference  to  the  copy  of  the  original  record  of 
location  and  the  abstract  of  title  herewith  filed  ;  the  value 
of  the  labor  done  and  improvements  made  upon  said  /;«// 
lode  mining  claim  by  the  applicant  (and  his  grantors)  being 
equal  to  the  sum  of  five  hundred  dollars.  Said  improve- 
ments consist  'of  discovery  shaft,  an  incline,  shaft  house, 
a  drift  and  two-thirds  interest  in  tunnel  (but  expressly 
excepting  and  excluding  from  this  application  all  that  por- 
tion of  the  ground  embraced  in  mining  claim  or  survey 
designated  as  lot  No.  2560  and  the  claim  of  Ncals  Matts«m 
on  the  Gottenburg  lode)  in  consideration  of  which  facts 
and  in  conformity  with  the  provisions  of  Chapter  VI.  Title 
32  of  the  Revised  Statutes  of  the  United  States,  application 
is  hereby  made  for  and  in  behalf  of  said  C.  A.  \\'»l<-,,tt  t«>r 
a  patent  from  the  United  States  for  the  said -Bear  lode  min- 
ing claim,  vein,  lode  or  deposit  and  the  surface  ground  so 
officially  surveyed  and  platted. 

C.  A.  WOLCOTT. 

•  Subscribed  and  sworn  to  before  me  this  16th  day  of 
December,  A.  D.  1907,  and  I  hereby  certify  that  I  consider 
the  above  deponent  a  credible  and  reliable  person,  and  the 
foregoing  affidavit,  to  which  was  attached  the  field  notes  of 
survey  of  the  Bear  lode  mining  claim,  was  read  and  exam- 
ined by  him  before  his  signature  was  affixed  thereto  and 
the  oath  made  by  him. 

llcnrii   Mnntlii. 
[SEAL.]  Notary  Public. 

Where  an  application  is  filed  in  the  land  office 
without  proof  that  the  plat  and  notice  have  teen 
posted  on  the  claim  as  required  by  R.  S.  §  2325,  such 
application  has  been  held  void.—  /  L.  D.  557;  Rev. 
Ed.  545;  34  L.  D.  583. 

This  application  "M"  is  attached  to  the  tran- 
script "H,"  commonly  styled  "The  Approved  Field 
Notes." 

At  the  same  time  there  should  be  prepared: 

N.— The  abstract  of  title. 

O. — The  proof  of  citizenship. 

P. — The  publisher's  agreement. 

Q. — The  publication  notice — which,  with  those 
already  referred  to,  complete  the  first  set  of  papers, 
to  wit: 

N.       ABSTRACT  OF  TITLE. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

I,   Alex.    W.    Grant,  Clerk   and   ex-officio   Recorder   of 
said  County,  do  hereby  certify  that  the  foregoing  is  a  true, 


APPLICATION  FOR  PATENT.  435 

full    and    correct    abstract    of    title    of    the    Hear   lode   tluMvin 

•  ibed.    .-is    tin-    same   appears    of    record    In    my   otlice.    ami 
shows    all    location    certificates,    deeds    or    other    instruments 
appearini:  of  iv(-..r«l   purport  in^  to  convey  or  nflVrt    the  saint-. 

\Yiimss    my    hand    and    the    seal    of  said    County,    this 
Itith    <lav    «>f    /.'i  <  >  ml,-  r.    A.    I  >.    /.'"<:. 

-  '  AI.I:\.   \v.   GRANT, 

I  County    S    -il.]  rder. 

It  should  contain  a  memorandum  of  the  location 
certificate,  including  any  amended  location  certiti- 

s.  and  the  usual  memoranda  of  the  deeds  and 
other  instruments  appealing  of  record  in  his  office, 
and  should  be  brought  up  to  and  include  the  date  of 
application,  and  should  be  certified  to  by  the  Re- 

The  abstract  often  contains  a  copy  of  the  loca- 
tion certificate,  and  in  such  case  the  recorder's  cer- 
tificate should.be  varied  to  state  that  it  contains  a 
true  ropy  thereof;  but  the  better  practice  is  to  mail 
with  the  application  papers  a  certified  copy  of  the 
location  certificate  (or  certificates  if  there  be  more 
than  one),  separately,  and  after  the  filing  of  the 
application  papers"  but  during  the  period  of  pub- 
lication to  send  the  abstract  proper,  which  in  such 
.'ain  only  the  memorandum  of  the  loca- 
tion certificate  with  names,  dates,  etc.,  in  the  same 
manner  as  .he  memoranda  of  the  separate  de< 
This  precaution  is  to  make  the  abstract  certainly 

'/'    the  date  of  the  filing  of  the  application. 

When  the-  applicant  for  patent  is  the  original 
locator  himself  (and  there  have  been  no  transfers  of 
i  it  lei.  he  should  file  as  his  abstract,  a  copy  of  his 
location  certificate  certified  as  follows: 

STA  i  i.    Of    OOl  "i:'  1-".    County    of    '\\  lit  r:   SS. 

I.     Lie*,    u.    a  runt,    clerk   and   ex-offielo   Recorder   of 

:y.   do  In  !•••!•>•   ormy   that  the  foregoing  is  a   full. 

true    :ind    correct     .-ilstract     of    tin-    title    to    the    Bear    lode 

therein    desci -jl ., -d.    ,is    th*>    same   appears    of    record    in    said 

otlice.    ;md    that     there    are    no    deeds    or    other    instruments 

aiipearinir  of   reconl   purporting   '"  convey  or  affect  the  same 

•iticate  of  location  of  which  the  fore^oin^  is  a 

true    • 

Witness    my    hand.    etc..    <i*    //' 


436  APPLICATION  FOR  PATENT. 

The  Abstract  Should  Show  Title  in  Applicant. 
— Rule  Ji2.  If  it  show  title  in  several  co-owners,  all 
such  co-owners  should  join  as  applicants.  If  it  show 
•a  co-owner  without  interest  in 'one  or  more  claims  of 
a  group,  the  proceedings  are  a  nullity  as  to  such 
claims. — 32  L:  D.  211.  If  it  show  that  there  were  co- 
owners  who  had  been  forfeited  out  for  non-perform- 
ance of  annual  labor,  this  is  considered  equivalent  to 
an  abstract  showing  transfer  by  deed  from  them  to 
the  applicant.  A  break  in  the  chain  of  title  behind 
a  relocation  made  in  the  usual  form  to  take  up  aban- 
doned claims  may  be  disregarded. — 10  L.  0.  77.9.  But 
the  Department  will  take  notice  of  a  void  Sheriff's 
deed  or  other  break  in  the  title  asserted  and  relied  on 
by  the  applicant. — 21  L.  D.  o}.).  Where  the  names  of 
co-tenants  are  inadvertently  omitted  in  the  applica- 
tion they  have  been  allowed  to  be  supplied  and  the 
patent  issued  to  all. — 10  L.  0.  206:  but  this  is  \r 
ular. 

O.       PROOF    <>1     »   I  I  I/I   N  -II  II'. 

STATI:   <>r   COLORADO,   County    of    T<lhr: 

c.      I.     II  '/'•-,//.    iirinir    lirst    duly    sworn    .M<vordin 
l:i\v.    depcs.  s    :ind    SM.VS    tlint    ho   is    the   applicant    for    patent 
for    tin-    Itrnr    Lode    Mining    Cl.-iim.    situate    in    fY/>/</r    < 
Mining    IHsirict.    County    of    Ttll*r.   State*  Of    <  'olorado  ;*    that 
he   is  ;i    native  born   citi/en   <•!'   tin1   Inited   States,    born   in   the 

County    of  .    St;it«-    of   .    in    the    year 

,    and    is    now    a    resident    of    llnulilrr.    State    of 

Colorado. 

,  \     \V..I..-«.TT. 

Sulisc  ribfd  and  sworn   to  before  me  thio  15th  day  of 

D<  rinihrr.     A.     I>.      / 

ry  M'HHin. 
[SEAL.]  Notary    Public. 

When  the  applicant  is  not  a  native  citizen  the 
form  after  the  *  will  proceed: 

That  he  is  a  naturalized  citizen  of  thr«  United 
took  out  his  final  naturalization  papers  in  tho  <'i,-<-nU  cnurt 
of  ilic   United  States  at  Denver,  Colorado,  on   ib»-  fi>-*t   d:iy 
of    Mail,    /s>'".    niul    is    now    .M    resident    of    Knlcnnm.    St:i' 

Colorado. 

If  the  applicant  has  not  taken  out  his  final   pa- 
pers,   it  will   show,   as   required   by   Rule   tftf,    when, 


APPLICATION  FOR  PATENT.  437 

where  and   in  what  Court  he  took  out  his  first  pa- 
pei  s  : 

That   he  d.M  lured  his  intention  of  becoming  a  citizen 
he    United    States   in   the   Circuit   Court    of   the    United 
>  s,  at  Denver,  Colorado,  on  the  first  day  of  May,  1899, 
ami  is  now  a  resident  of  Cheyenne,  State  of  Wyoming. 

If  the  applicant  claims  under  his  father's  nat- 
uralization, it  will  proceed: 

That  he  is  a  naturalized  citizen  of  the  United  States, 
born  in  the  /fcpub/ir  of  /Yru.  and  that  he  came  to  the 
United  States  a  minor,  under  the  age  of  21  years,  and  has 
ever  since  resided  in  the  United  States,  and  that  his  father 
took  out  his  final  papers  and  became  a  naturalized  citizen 
of  the  United  States  during  the  minority  of  affiant,  whereby 
affiant  became  a  naturalized  citizen  under  the  terms  of  Sec- 
tion 2172  of  the  Revised  Statin. s  of  the  United  States,  and 
is  now  a  resident  of  A*pcn,  County  of  Pitkin,  State  of 
Colorado. 

Serving  in  the  army  or  navy  does  not  complete 
citizenship  of  itself.  Soldiers  must  comply  with 
§  2166  and  sailors  with  §  2174  of  the  R.  S.  or  28 
Stat.  L.  p.  124. 

Where  there  are  several  applicants  each  makes 
his  own  affidavit  of  citizenship. 

Affidavit,  Where  Made. 

By  Act  of  April  26,  1882,  the  affidavit  of  citizen- 
ship,  where  the  applicant  resides  outside  of  the  land 
district,  may  be  made  anywhere  in  the  United  States, 
before  any  notary  or  Clerk  of  Court  of  Record  where 
the  applicant  may  reside  or  happen  to  be  found. 

Proof  by  Two  Witnesses. 

When  the  affidavit  of  the  applicant  cannot  be 
procured  the  land  office  will  allow  proof  of  his  citi- 
zenship by  the  affidavits  of  two  disinterested  wit- 
nesses.— Rule  7". 

Citizenship  of  Corporation. 

A  corporation  must  file  a  copy  of  its  charter  or 
articles  of  association,  certified  to  by  the  Secretary 
of  State  of  the  State  within  which  it  is  operating, 
whether  it  be  a  domestic  corporation  or  a  corpora- 


-MS  APPLICATION  FOR  PATENT. 

tion  of  some  other  State  doing  business  in  that  State. 
— Rule  66;  21  L.  D.  351. 

Or  it  may   file   a   "Certificate   of   Incorporation" 
and  the  Land  Office  will  not  pass  on  the  point  that 
it   is  not  by  its   articles  a  corporation   which   could 
lawfully  take  title  to  mineral  lands. — 20  L.  D.  lid 
L.  D.  83. 

Entry  secured  by  fraudulently  suppressing  the 
fact  that  it  was  for  the  benefit  of  an  alien  corpora- 
tion will  be  cancelled  and  purchase  price  will  not  be 
refunded.— 20  L.  D.  .111). 

Proof  of  Non-Abandonment. 

By  circular  of  the  General  Land  Office  of  March 
24,  1887,  8  L.  D.  505,  it  was  ruled  that  the  register 
should  require  upon  each  application  satisfactory 
proof  of  compliance  with  the  annual  labor  law;  but 
by  the  Revision  of  1901  such  proof  is  no  longer  re- 
quired and  the  question  is  left  by  the  Department  to 
be  settled  by  adverse  claimants  in  the  courts. — Rule 
55;  29  L.  D.  302,  401;  31  Id.  69.  But  a  delay  to  make 
entry  until  beyond  the  end  of  the  calendar  year  after 
publication,  held  fatal  to  the  entry,  where  relocation 
for  failure  to  do  annual  labor  is  alleged  by  protest. — 
31  L.  D.  M. 

P.    PUBLISHER'S   CONTRACT. 

I,  the  undersigned,  publisher  and  proprietor  of  the 
Cripple  Creek  Star,  a  weekly  newspaper  published  in  Cn>/>/« 
A .  Teller  County,  State  of  Colorado,  hereby  agree  to 
publish  a,  notice  dated  1.  s.  Land  Office,  Pueblo,  Colo., 
December  i~>.  1907,  required  by  Act  of  Congress,  approved 
May  10th,  1872,  of  the  intention  of  C.  A.  \Vnlmtt  to  apply 
for  a  patent  for  his  claim  on  the  Dear  Lode,  situate  in 
Cripple  Creek  Mining  District,  County  of  Tetter,  State 
aforesaid,  and  to  hold  the  said  C.  A.  Wolcott  alone  re- 
sponsible for  the  amount  of  our  bill  for  publishing  the  same. 

And  it  is  hereby  expressly  stipulated  and  agreed  that 
no  claim  shall  be  made  against  the  government  of  the 
United  States,  or  its  officers  or  agents,  for  such  publication. 

\Vitness  my  hand  this  16th  day  of  December,  A.  I> 
1M7. 

P.  H.  KNOWLTON,  Publisher. 

In  What  Newspaper. 

The  notice  must  be  published  in  a  newspaper 
to  be  by  the  Register  designated  as  published  near- 


APPLICATION  FOR  PATENT.  439 

10  the  claim.—  /'  fi  //  L.  D.  138.  When 

there  are  two  or  more  in  the  nearest  town,  either 
may  be  designated. — Camcrun  r.  Seaman.  I.I  M.  l\. 
2  L.  D.  158.  The  practice  of  the  Register,  where 
two  or  more  local  papers  in  the  same  town  are  pub- 
lished is  to  designate  that  one  which  the  attorney 
may  suggest.  The  distance  is  to  be  calculated  not 
by  an  air  line,  but  by  the  most  usually  traveled  route. 
The  language  of  the  Act  allows  much  discretion  in 
the  designation  of  the  newspaper.  -/:  />.  D.  560;  .'<; 
I'!.  !',:>:  .;;  hi.  l&f.  Hut  this  discretionary  power  is 
subject  to  review  by  the  department. — 32  L.  D.  $59, 
611. 

The  notice  must  be  continued  in  the  same  paper 
and  cannot  be  shifted  from  the  daily  to  the  weekly 
edition.— 3  L.  0.  18. 

What  Constitutes  a  Newspaper. 

It  must  be  a  reputable  newspaper  of  general 
circulation.— .>  /..  D,  '"•• :  758.  The  Register  has  a 
discretion  in  deciding  what  constitutes  such  a  news- 
paper.— 10  L.  D.  655;  2C>  Id.  !',->. 

Q.        ITIM   H     \  I  |n\      NM|  K    |  . 

This  is  verbatim  the  same  as  "K"  and  amounts 
to  a  fourth  copy  of  "K,"  except  that  it  is  not  signed 
by  the  applicant  but  is  forwarded  in  blank  to  the 
land  office  where  it  receives  the  application  number, 
is  signed  by  the  Register  and  returned  by  him  to 
the  attorney  for  claimant  or  direct  to  the  printer. 

It  usually  contains  at  the  foot  the  dates  of  the 
first  and  last  publications;  but  erroneous  statement 
of  last  date  will  not  excuse  failure  to  file  adverse 
within  statutory  period.— 25  L.  D.  550. 

Manner  and  Period  of  Publication. 

The  notice  "Q"  must  be  published  for  61  days 
in  a  daily,  or  nine  consecutive  times  in  a  weekly 
paper. — 29  L.  D.  230;  Rule  '/J;  and  while  the  notice 
is  going  through  its  newspaper  publication,  it  also 
stands  posted  on  the  claim,  and  tacked  to  the  bulle- 


440  APPLICATION  FOR  PATENT. 

tin   of   the   land   office.     Each   of   these   methods   of 
publication  is  mandatory  and  essential.     See  p.  445. 

First  Set  or  "Application"  Papers. 

The  above  mentioned  papers,  constituting  the 
following  list,  to  wit: 

F. — The  final   plat — one  copy. 

H. — The  approved   field   notes. 

K. — The-  copy  intended  for  posting  in  land  office. 

K. — Second  copy  with  "L"  proof  of  posting  at- 
tached. 

M. — Application  for  patent. 

N.— Abstract  of  title. 

O. — Proof  of  citizenship. 

P. — Publisher's  agreement. 

•  Q. — Publication  notice — which  complete  the  first 
set  of  papers  commonly  called  the  "application  pa- 
pers," are  all  forwarded  at  one  time  by  the  attorney 
to  the  local  land  office. 

Upon  receipt  of  the  application  papers,  accom- 
panied by  the  filing  fee  of  ten  dollars,  the  register 
gives  the  papers  an  application  number,  makes  a  rec- 
ord of  the  application  in  the  nature  of  an  index,  at- 
tests the  posting  of  notice  "K"  in  his  office,  affix- 
ing the  date,  and  returns  to  the  attorney  for  claim- 
ant the  notice  for  publication  "Q"  headed  with  the 
application  number,  or  sends  it  direct  to  the  proper 
paper  for  publication.  The  return  of  the  publica- 
tion notice  to  the  attorney  or  paper  is  an  implied 
approval  of  the  publisher's  contract  and  a  sufficient 
designation  of  that  paper. 

RECAPITULATION. 

It  may  be  convenient  to  review  the  proceedings 
at  this  point. 

The  papers  A  to  I,  inclusive,  have  performed 
their  office. 

A,  the  request  for  survey;  C,  the  preliminary 
plat;  D,  the  field  notes,  and  F,  the  final  plat,  remain 
with  the  Surveyor  General. 


APPLICATION  FOR  PATENT.  441 

B,  the  order  for  survey,  remains  in  the  hands  of 
the  surveyor,  being  his  voucher  against  the  applicant 
for  the  work  done  under  it. 

E,  G  and  I  are  mere  certificates  endorsed  on 
other  pai» 

The  transcript  H  (the  approved  field  notes), 
has  been  attached  to  the  application  M,  and  both 
mailed  to  the  local  land  office. 

One  copy  of  the  plat  F  has  been  forwarded  by 
the  Surveyor  General  to  the  local  land  office  to  be 
kept  on  file;  one  copy  has  been  posted  on  the  claim, 
and  one  copy  forwarded  to  the  local  land  office  as 
one  of  the  application  papers. 

One  of  the  notices  K  has  been  posted  on  the 
claim;  one  has  been  attached  to  the  proof  of  post- 
ing; one  has  been  posted  in  the  land  office,  and  one, 
Q,  remains  to  be.  published  or  is  being  published. 

L,  the  proof  of  posting;  M,  the  application;  and 
I*,  the  publisher's  agreement,  have  been  filed  in  the 
land  office. 

N,  the  abstract,  and  O,  the  proof  of  citizenship, 
have  luH-n  lih'<L  or  if  not,  may  be  filed  at  any  time 
pending  the  publication. 

The  Second  Set  or  "Final  Entry"  Papers  which  re- 
main to  be  filed  after  the  publication  is  complete, 
consist  of: 

R. — Proof  of  continuous  posting 

S. — Proof  of  publication. 

T. — Proof  of  sums  paid. 

U. — Application  to  purchase,  to  wit: 

When  the  period  of  publication  is  complete, 
proof  of  the  notice  having  remained  on  the  claim 
and  of  the  publication  are  made  as  follows: 

R.       PROOF    THAT   PLAT    AM>    \oTHK    KKMAI\M>    I'nx  n.;i)    ON 
CLAIM   Drill  N«.    TIME  OF  PUBLICATION. 

Si  MI:  ..r  COLORADO,  County  of  Teller:  ss. 

C.  .1.  \\'nlri,tt,  being  first  duly  sworn  according  to 
law.  deposes  and  says,  that  he  Is  the  claimant,  of  the  /;*'// 
l«nl»«  mining  claim.  Cripple  Creek  Mining  District,  7V//./ 
<'. unity.  State  of  Colorado,  the  official  plat  of  which  prem- 
ises together  with  the  notice  of  his  intention  to  apply  for 


442  APPLICATION  FOR  PATENT. 

a  patent  therefor  was  posted  thereon,  on  the  15th  day  of 
December,  A.  D.  1907,  as  fully  set  forth  and  described  in 
the  affidavit  of  John  C.  Clark  and  B.  F.  Pinson,  dated  the 
15th  day  of  December,  1907,  which  affidavit  was  duly  filed 
in  the  office  of  the  register,  at  Pueblo,  in  this  States  and 
that  the  plat  and  notice  so  mentioned  and  described,  re- 
mained continuously  and  conspicuously  posted  upon  said 
mining  claim  from  the  15th  day  of  December,  A.  D.  1907, 
until  and  including  the  19th  day  of  1'ihninnj,  A.  D.  1908, 
including  the  sixty  days'  period  during  which  notice  of  said 
application  for  patent  was  published  in  the  newspaper. 

C.   A.    WOLCOTT. 

Subscribed  and  sworn  to  before  me  this  20th  day  of 
February,  A.  D.  1908,  and  I  hereby  certify  that  the  fore- 
going affidavit  was  read  to  the  said  C.  A.  Wolcott,  previous 
to  his  name  being  subscribed  thereto. 

/'.   C.   Crawford, 

[SEAL.]  Notary  Public. 

This  affidavit  of  continuous  posting  the  claimant 
may  make  from  information  derived  from  hearsay. — 
9  L.  D.  503. 

S.       CERTIFICATE   OF  PUHI.H  ATH  >\. 


(Copy  of 
publication  notice 


cut  Jrom 


heiv.  . 


i.  (1 


I,  P.  H.  Knowlton,  do  certify  that  I 
am  Publisher  of  the  Cripple  Creek  Star, 
a  weekly  newspaper  published  in  Cr //»/</» 
Creek,  in  the  County  of  Teller,  and  St.it. 
of  Colorado,  and  that  the  annexed  notice 
\\.MS  published  in  said  paper  once  each  and 
every  week  for  nine  consecutive  weeks,  the 
first  publication  being  on  the  18th  day  of 
December.  A.  1  >.  1907,  and  the  last  publi- 
cation being  on  the  12th  day  of  February, 
A.  D.  1908.  P.  H.  KNOWLTON. 


The  publisher's  re-  Subscribed  and  sworn  to  before 
ceipted  bill  is  com-me  this  20th  day  of  February,  A.  D. 
monly  attached  to  this  1908.  Henr;/  Moody, 

blank.  [SEAL.I  Notary  Public. 

Together  with  these  proofs  of  publication  and 
posting,  the  claimant  forwards,  under  one  of  the  in- 
structions of  the  department,  the  following: 

T.      PROOF   OF   SUMS   PAID. 

STATE  OF  COLORADO,  County  of  Teller:  ss. 

C.  A.  Wolcott,  having  been  first  duly  sworn  according 
to  law,  deposes  and  says  that  he  is  a  citizen  of  the  United 
States,  over  the  age  of  twenty-one  years;  that  he  is  th<> 


APPLICATION  FOR  PATENT.  Itf 

applicant    for    patent     to    I.'HMI    feet    upon    the    Hear   Lode,    In 
r,  •//,/,/,     Greek    Mining    District.     Tetter    county.    Colorado; 
that    in   the   prose  -in  ion   of  such   application   he  has  paid  the 
following    sums    of    money.    vi/..  : 
Tor   i.  Hit.'   work    in    the   Surveyor   Ceneral's  office  ......    $   .30 

To   /:.    /'.    c/niA,  .    Mineral    Surveyor,   for  surveying   and 

planinir  ..................................        50 

To    Register   and    Receiver,    for    filing    application    in 

I.  .-111(1        Mtlic...  .................  10 

the   cripple   cr.-ek    Star,    for    publishing   notice  of 

application  ..........  ............        20 

he  Receiver  of  the  local   L.iml  <  nii«  •*».  for  land....        45 

$155 

A       \VOLCOTT. 

Subscribed  and   sworn  to  b<>fon>   in.-   this  SOth  day  of 

\       D.     I'.UIS. 

D.  C.  Crawford, 
AL.]  Notary  Public. 

These  are  the  official  costs  only;  it  does  not  in- 
clude attorney's  fees,  notary's  charges.  nor  cost  of 
abstract.  The  total  expense  of  patenting  one  lode, 
without  mill  site,  varies  from  $150  to  $250. 

The  filing  of  this  paper,  T,  completes  the  pre- 
ivquisites  of  entry  and  payment  except  the  formal 
application  to  purchase,  U,  and  the  register's  proofs, 
V  and  W. 

U.      APPI.K  A  I  IMN    to   i'i  i:»  HAM  . 


P«    th,    Bfffttor  ';»>'   /;•'•/.,    t  nitt-d  States  Land  Offlw.  nt 

Pitt  I.  '  >i<l<,. 

The  undersigned,  claimant  under  the  provisions  of  the 

-•(1   Statutes  of    the    liiit.Ml   State*,   Mi.-ipti-r    Vj.  Till. 
and   legislation   suppl.-im-ntal    thereto,    ht-rrhy   applies  to   pur- 
chase that  J/iMi.-i.'/  t'l'iim  known  as  the  Bear  lode,  located  in 
th«-  west   half  of  section  •_"_'.   iuwnsidp   N  s     Uange  No. 

•'•'.'.   west   of   the   sixth    principal    meridian,   designated   as   lot 

11310,  said   lot    No.    li:;i«i  i-xti-ndinu-  in   length 

along  said   /.•'•//    rein   or    i"«i,-.   i.m    nr^restte   *./-..  i,tin<i  <nui 

•!in<i    from    this    .1  pplicat  ion  all  t  hat  portion  of  the  ground 

embraced  In  mining  claim   or  survey   designated  as   lot  No. 

'.  the  Carnarvon  lode,  and  the  claim  of  Weals  Mattson, 
on  the  (;>,((,  nfturg  lode,  and  also  all  that  portion  of  any  vein 
or  lode,  the  top  or  apex  of  which  lies  inside  of  said  excluded 
irmund.  said  lode  mining  claim  emt»r:icing  8.011  acres  in  the 
Cripitl*  <')•><  k  Mining  District,  in  the  County  of  Teller,  and 

•  of  Colorado.  MS  shown  by  the  survey  thereof,  and 
hereby  atrn-i-s  t..  pay  therefor  forty-live  dollars,  being  the 
legal  price  thereof. 

Dated  Pueblo,  February  fO,  1908.          C.  A.  WOLCOTT. 


444  APPLICATION  FOR  PATENT. 

I,  8.  A.  Abbey,  Register  of  the  land  office  at  Pueblo, 
Colorado,  do  hereby  certify  that  the  aforesaid  mining  claim 
or  lot  No.  11310  as  applied  for  above,  is  subject  to  entry 
by  the  above  named  applicant ;  the  area  of  said  lode  mining 
claim  being  8.011  acres  and  the  legal  price  thereof  forty-five 
dollars. 

February  20,  1908.  S.  A.  ABBEY, 

Register. 
U  does  not  need  to  be  verified. 

Excluded  Areas. 

The  notice  and  the  application  must  show  what 
areas  are  excluded  and  if  the  entry  be  of  any  such 
excluded  areas  a  republication  and  posting  will  be 
ordered.— 22  L.  D.  Ill;  28  Id.  .',.W. 

Entry  may  embrace  land  excluded  from  applica- 
tion, but  which,  on  adverse  proceedings,  was  awarded 
to  the  applicant. — 29  L.  D.  11.  May  be  amended  to  in- 
clude a  tract  at  first  excluded  on  account  of  defective 
title.— 29  Id.  281.  Will  not  be  allowed  for  land  em- 
braced in  a  prior  subsisting  entry. — 29  Id.  62. 

Entry — Cancellation — Relinquishment. 

Entry  cancelled  without  notice  must  be  rein- 
stated.— 23  L.  D.  113;  31  Id.  51.  Cancellation  does 
not  subject  claim  to  relocation. — 23  Id.  118;  but  re- 
publication  and  posting  is  required. — 29  Id.  JflO;  31 
Id.  37.  Reinstatement  will  not  be  made  when  entry- 
man  has  filed  adverse  against  subsequent  application. 
— 26  Id.  608.  Entry  may  stand  on  proper  proof  where 
title  is  subsequently  acquired.— 29  Id.  208.  Entry 
allowed  by  mistake  pending  adverse,  will  be  can- 
celled.— 30  Id.  298.  A  relinquishment  during  publi- 
cation and  before  adverse  claim  is  filed  runs  to  the 
government  though  in  terms  made  for  the  benefit 
of  another  claimant  and  the  ground  relinquished  can- 
not thereafter  be  made  the  basis  of  an  adverse. — 27 
Id.  369. 

The  Land  Office  has  the  right  to  cancel  mineral 
entries  for  non-compliance  with  Statute  or  rule,  al- 
though no  adverse  claim  has  been  filed. — Mineral 
Farm  Co.  v.  Barrick,  80  P.  1055. 


APPLICATION  FOR  PATENT.  I  ir, 

The  rejection  of  an  application  for  patent  or 
the  cancellation  of  his  receiver's  receipt  by  the 
land  office  does  not  destroy  the  applicant's  original 
title  by  location.  —  Pcoria  Co.  v.  Turner,  79  P.  915; 

>/ant.  77   /'.    II  l'>. 

Register's  Proof  Completes  Application. 

Upon  receipt  of  the  final  entry  papers   (R  —  U) 

accompanied  by  the  purchase  money    (all  other  pa- 

iring regular)  the  Register  makes  his  certificate 

that  the  notice  "K"  remained  posted  on  his  bulletin 

during    the    period    that    its    duplicates    were    being 

>'d  on  the  claim  and  published,  and  makes  his 
final  certificate  of  entry. 

V.      !-  '8     Cl  IM  in.   \  i  i       0]       POSTING      WOTH  i:     FOB 

n 


[Attached  to  Bull*  tin  co/>//   of   A'.] 

LSM    I  \M>  OFFICE, 
At  I'm'.io.  Colorado. 

•i-uary   21,  1906. 

r.Ttlfy  that  the  official  pint  of  the  Bear  lode, 
designated  by  the  surveyor  general  as  lot  N<>.  n:;n>  was 
filed  in  this  office  on  the  i>;th  r.  A.  I  ».  1907, 

and  that  a  noti.-.-,  «,f  \\hidi  ihr  attarii.-«i  is  a  copy.  of  th«- 
intention  of  C.  A.  Wnlmtt  to  :i|»ply  for  a  patent  for  the 
claim  or  premls*  <1  by  said  pl.-it.  :md  de- 

in  the  field  notes  of  survey  tlu-n-nf  til.><!  in  said 
ti.-n.  was  posted  conspicuously  in  this  office  on  the 
iiit  n  d:iv  of  Decembo  .  r.n»7.  .md  remained  so  posted  until 
tin*  /.-'///'  .1  1908,  i-.-iii-  tin-  full  p«Tiod  of  sixty 

\s  during  th»-  p.  i  i"«l  •>!  publication  as  required 
h\  law  :  and  that  said  plat  remained  in  this  office  during 
that  time  subject  to  examination  and  that  no  adverse  claim 
thereto  has  been  filed.  S.  A.  ABBEY, 

Register. 

It  is  important  that  this  bulletin  notice,  "K," 
should  have  been  properly  posted.  The  land  office 
holds  that  it  is  essential  that  the  three  notices,  to 
wit:  by  newspaper,  by  posting  and  by  the  bulletin 
should  be  concurrent,  and  in  a  case  where  the  bulle- 
tin was  not  posted  till  the  third  day  of  advertise- 
ment they  allowed  an  adverse  on  the  63rd  day,  hold- 
ing that  the  double  and  contemporaneous  publica- 
tion was  not  until  such  day  complete.  The  bulletin 


446  APPLICATION  FOR  PATENT. 

must  be  posted  60  days,  and  the  newspaper  notice 
does  not  begin  to  run  until  the  bulletin  is  posted. — 
J  L.  D.  510;  11  L.  D.  282.  If  any  one  of  the  three 
notices  is  insufficient  they  are  all  rendered  valueless. 
— 29  L.  D.  Jin. 

W.     REGISTER'S  FINAL  CERTIFICATE  OF  IMUY. 

Mineral  Entry  No.  2,000.     UNITED  STATES  LAND  OFFKI..) 
Lot  No.  11,310.  At   Pueblo,  Colorado. 

February  21,  1908.  ) 

It  is  hereby  certified  that  in  pursuance  of  the  pro 
visions  of  the  Revised  Statutes  of  the  1'nited  states.  Chap- 
ter VI,  Title  32,  and  legislation  supplemental  thereto,  C.  A. 
\\nlcott,  whose  postoffice  address  is  BonUlcr,  Colorado,  on 
this  day  purchased  that  mining  claim  known  as  the  ltm>- 
lode,  in  the  west  %  of  section  22.  in  township  No.  1."..  s. 
Range  No.  69  W.  of  the  sixth  principal  meridian,  designated 
as  lot  No.  11,310,  said  lot  No.  ll.:;i<»  extending  !.."•••«»  tv.-t 
in  length  along  said  Bear  vein  or  lode,  expressly  excepting 
and  excluding  from  said  purchase  all  that  portion  of  the 
ground  embraced  in  mining  claim  or  survey  designated  as 
lot  No.  2560,  Carnarvon  lode  :  <//.-•  o  tfn  i-inim  <>f  \<  *//* 
MiittHon,  on  tlie  Oottenburg  lode,  and  also  all  that  portion 
of  any  vein  or  lode,  the  top  or  apex  of  which  lies  inside 
of  said  excluded  ground;  said  lode  mining  claim,  as  m' 
embracing  s.nii  acres  in  the  Cripple  Creek  mining  district 
in  the  County  of  Teller  and  State  of  Colorado,  as  shown  by 
the  plat  and  field  notes  of  survey  thereof,  for  which  tin- 
said  party  first  above  named  this  day  made  payment  to  tin- 
receiver  in  full,  amounting  to  the  sum  of  forty-flvc  dollars. 

Now.  therefore,  be  it  known  that  upon  the  presenta 
tion  of  this  certificate  to  the  Commissioner  of  the  <Jeneral 
Land  Office,  together  with  the  plat  and  field  notes  of  survey 
of  said  claim  and  the  proofs  required  by  law.  a  patent  shall 
issue  thereupon  to  the  said  C.  A.  Wolcott,  if  all  be  found 
regular. 

S.    A.    ARIU:V. 

Regisfer. 

Receiver's  Receipt. 

At  the  same  time  the  receiver  issues  in  dupli- 
cate the  receiver's  receipt  and  files  the  original  with 
the  papers,  and  delivers  or  sends  the  duplicate  to 
the  claimant,  and  all  the  preliminary  proceedings 
are  now  complete.  This  receiver's  receipt  should  be 
kept  by  the  claimant  until  notice  from  the  local  land 
office  that  patent  has  arrived  at  such  local  land  of- 
fice, as  its  surrender  is  required  before  the  patent  is 
delivered.  If  mislaid,  proof  of  loss  must  be  made. 


APPLICATION  FOR  PATENT.  447 

X.      \IIIDAYIT  OF  LOST  BECEIM  i:'>   KM  i  irr. 

•RADO,   County    of    Teller:  ss. 

In  the  /';/»  hlo  Land  District,  Colorado. 

Before  me,  the  subscriber,  register  of  said  land  office. 

•nally  appeared  John  i:>  xt.  who,'  being  duly  sworn,  saith 

that    he  is   tin*   applicant   for  a  patent  on  the  Brclau   lode 

mining  claim  survey  lot   No.   7000   in  Cripple  Creek  mining 

district,  County  of  Teller,  State  of  Colorado,  and  the  same 

n  who  as  such  applicant   made  entry  of  said  survey  lot 

in  the  said  land  office  on  or  about  the  first  day  of  Jinn  .  .\ 

I ».    1906.     That    on    tin-    dat.-    of    said    rntry    he    received    the 

duplicate    receiver's    receipt     ih«>n'i<>r       That    said    duplicate 

ipt    is    lost    or    mislaid       That    deponent    has 

mad*  -.-arch  ainoiij:  his  papers  and  can  not 'find  the 

same,   and  can  not  th«'r«>for»>  surrender  the  same.     That  he 

or  purpom-d  to  assign  said  receiver's  receipt 

and  still    remains  the  owner  and  in   possession  of  the  land 

therein  described  and   is   the   party   entitled   to  receive   the 

patent    therefor.*     Wherefore   affiant    asks    that   the    patent 

to  said  survey  lot  be  delivered  to  him  without  the  surrender 

of  said  re<  <  *>ipt  upon  this  his  affidavit  of  loss. 

JOHN  Bi 

Sworn  and  subscribed  to  before  me  this  eighth  day  of 
January,  A.  D.  me.  g.  A.   ABBBT, 

Register. 

If  the  title  has  been  transferred  insert  between 
the  *  * 

"Owner  by  pur. -ha  ^  of  the  Brclau  lode,  etc.    (descrip 
tion  i.    That   he  purchased  the  same  since  the  same  was  en- 
patent  by  deed  fr««m  tin-  party  who  made  the  entry. 
That  he  never  received  the  duplicate  receiver's  receipt  from 
his  vendor,  and  does  not  kn«w  where  the  same  can  be  found. 
That   he  has  made  diligent    in.piiry  of  the  attorney  and  sur- 
r  employed   in   the  application   for  patent  to  said   lode, 
who  declare  that    th.v   n«  \,  r   had  the  same  in  their  posses 
MOM.    and     that     th.     whereabouts    of    affiant's    vendor    are 
unknown    to  affiant."    Wherefore,   etc. 

After  Entry. 

All  proceedings  after  entry  are  ministerial.  The 
papers  in  the  local  land  office,  except  the  copy  of 
plat  F,  furnished  by  the  Surveyor  General,  are  for- 
warded to  the  General  Land  Office  at  Washington 
and  the  patent  issues  in  due  course  usually  arriving 
within  one  year,  the  department  being  behind  in  its 
office  work;  but  this  is  upon  the  supposition  that 
all  the  preliminary  steps  have  been  regular,  and  that 
the  land  was  in  fact  open  to  entry — if  material  errors 


448  APPLICATION  FOR  PATENT. 

or  defects  are  discovered  after  the  receiver's  receipt 
issues,  it  may  be,  and  often  is,  recalled  and  cancelled, 
and  if  land  entered  as  agricultural  is  shown  to  be 
mineral  at  any  time  before  patent  issues,  the  same 
result  follows.— 7  L.  O.  23. 

Corrections  and  Additional  Proofs. 

The  entire  series  of  papers  are  reviewed  at 
Washington  and  if  irregularities,  such  as  errors  in 
survey,  insufficient  proof  of  improvements,  errors  in 
affidavits,  etc.,  are  discovered,  the  local  land  office 
is  notified  from  the  General  Land  Office,  and  (unless 
the  mistake  is  a  fatal  one)  the  claimant  or  his  at- 
torney is,  by  letter  from  the  local  land  office,  notified 
to  supply  the  defect  by  further  affidavit  or  certificate, 
as  the  case  may  be. 

Government  Price  $5  Per  Acre. 

The  application  papers  (p.  440)  are  accompanied 
by  the  money  to  be  paid  on  the  land,  being  $5  for 
each  acre  or  fractional  part  of  an  acre  of  the  surface 
ground.  The  extreme  limit  of  claim  in  Colorado  be- 
ing 1,500  feet  long  by  300  feet  broad,  such  claim 
contains  10  and  33-100  acres;  the  fractional  acre  be- 
ing paid  for  as  one  acre,  makes  the  claim  equivalent 
to  11  acres.  The  amount  paid  will  therefore  vary 
between  $5  and  $55  for  a  single  lode  location  with  no 
mill  site.  The  price  of  placer  ground  is  $2.50  per 
acre,  or  fraction  of  an  acre. 

Acreage  of  Lode  Claims. 

In  computing  this  acreage  all  interfering  surveys 
which  have  been  deducted,  are  excluded.  The  pay- 
ment is  based  on  the  amount  of  claimed  surface 
ground  covered  by  the  survey  and  not  excluded  in 
favor  of  prior  applications. 

Claim  1500  x  600  feet  contains  20,66  acres. 
1500x300     "  10.33 

1500x150     "  "  5.16       " 

3000  x    50     "  3.44 

1400  x    50     "  "  1.60       " 

1600  x    50     "  "  1.83       " 


APPLICATION  FOR  PATENT.  449 

Affidavits — Where  Made. 

All  affidavits  made  in  support  of  the  application 
must  be  made  within  the  land  district.— R.  8.  §  2335; 
34  L.  D.  314;  35  Id.  455.  A  possible  exception  to 
this  is  the  publisher's  affidavit  (S)  where  the  pa- 
per "nearest  the  claim"  happens  to  be  a  newspaper 
in  another  land  district.  Another  .  exception  is  the 
affidavit  of  citizenship. — See  page  -$36*. 

Before  What  Officer. 

They  may  be  made  before  a  disinterested  notary 
public  or  any  officer  authorized  to  administer  oaths. 
Among  such  officers  are  the  register  and  receiver  of 
the  proper  district.  Where  allowed  outside  the  dis- 
trict they  should  be  taken  before  a  notary  or  the 
rk  of  a  court  of  record.  In  all  cases  the  official 
seal  should  be  attached.— A'// le  69. 

It  has  been  ruled  that  any  officer,  as  for  instance 
the  Clerk  of  the  U.  S.  Court,  whose  jurisdiction  ex- 
tends over  the  territory  of  the  land  district,  may 
administer  the  oath  anywhere  within  his  jurisdic- 
tion.—>i  L.  0.  195. 

Where  the  Application  Is  Joint,  any  one  co- 
owner  may  make  all  the  affidavits  required,  on  behalf 
of  his  co-owners  as  well  as  on  his  own  behalf,  except 
the  affidavit  of  citizenship.— See  p.  43T. 

When  a  claim  is  owned  in  common,  it  is  some- 
times convenient  to  have  a  quit-claim  executed  by 
the  others  to  one  of  their  number,  placing  the  title 
for  the  time  being,  in  his  name,  the  grantors  secur- 
ing themselves  by  title  bond  or  otherwise. 

Application  by  Agent. 

"Provided,  That  where  the  claimant  for  a  patent  is 
not  a  resident  of  or  within  the  land  district  wherein  the 
vein,  lode,  ledge,  or  deposit  sought  to  be  patented  is  located, 
the  application  for  patent  and  the  affidavits  required  to  he 
made  in  this  section  by  the  claimant  for  such  patent  may 
•  be  made  by  his,  her,  or  its  authorized  agent,  where  said 
agent  is  conversant  with  the  facts  sought  to  be  established 
by  said  affidavits  :  *  •  *  — A.  C.  Jan.  &,  1880. 

15 


450  APPLICATION  FOR  PATENT. 

It  does  not  seem  that  under  the  above  Act  a 
resident  owner  can  apply  at  all  by  agent — unless  at 
least  temporarily  absent.— 8  L.  D.  223;  35  L.  D.  434. 
And  the  fact  of  absence  should  be  recited  in  the 
power  of  attorney.  In  other  words,  he  cannot  dele- 
gate the  power  while  he  is  present,  by  mere  caprice 
or  desire  to  avoid  personal  attention  to  the  matter. 

Where  an  application  is  by  agency  there  must  be 
a  written  power  of  attorney,  the  original  of  which  is 
filed  in  the  Land  Office. 

Y.      vniiM   or  I'nxvi  i;  01     \  i  K>BH  > 

KNOW  ALL  MI:N  i:v  EHBM  PKB8BNT8,  That  I.  John 
ti  It-ii  n,  of  Baltimore,  State  of  Maryland,  a  citizen  of  the 
Tinted  States,  do  hereby  constitute  and  appoint  J.  W.  B. 
Hmitfi.  of  lilnhu  N/>n/'//.v.  County  of  Clear  Creek,  State  of 
fnlnriiiin,  my  attorney-in-fact,  for  me  and  in  inv  name,  to 
make  application  for  patent  of  the  United  States,  in  the 
proper  land  ollice.  upon  the  Itmunn  lode  mining  claim,  l.fiun 
feet  in  length  l»y  150  feet  in  width,  situate  on  Krimhlirnn 
M nun tni a  in  diifjith  mining  district.  <'oiinfy  of  ('/• 
Slate  of  Colorado,  and  to  make  or  cause  to  be  made,  any  and 
all  surveys,  relocations,  affidavits,  and  all  necessary  papers 
which  may  be  required  in  the  prosecution  of  such"  applica- 
tion, or  to  perfect  or  protect  the  title  thereto,  and  to  do  all 
acts  and  things  in  and  about  the  premises  which  I  myself,  if 
present,  could  do,  until  patent  is  finally  delivered.  Also  in 
case  of  adverse  claim,  I  authorize  him  to  employ  counsel 
and  take  all  measures  necessary  to  defend  against  said 
.•idverse  claim  or  suit  in  support  thereof,  either  In  the  land 
office  or  in  judicial  proceedings,  and  in  such  judicial  pro 
«e< -dings,  to  execute  any  bonds  or  other  papers,  and  verify 
all  proceedings,  to  and  including  appeal  or  writ  of  error. 

Witness  my  hand  and  seal  this  third  day  of  / 
A.   D.  1908.  JOHN    QLBNN.      |  SI:AL.] 

Acknowledge  according  to  form   on  i>. 

The  deputy  surveyor  cannot  accept  such  power 
nor  act  directly  or  indirectly  as  agent. — Rule  93. 

In  Each  Affidavit  Signed  by  Agent  should  be  in- 
serted, by  way  of  precaution,  the  following  clause: 

"Affiant  further  saith  that  the  said  claimant  is  not  a 
resident  in  the  land  district  in  which  said  claim  is  situate, 
but  resides  at  Tallahassee,  State  of  Florida,  and  that  ailiant 
is  the  duly  authorized  agent  of  said  claimant,  and  is  con- 
versant with  the  facts  sought  to  be  established  by  said 
affidavit." 


APPLICATION  Ken:  PATENT. 

Where  a  Corporation  Applies  all  papers  are 
signed  by  the  president,  or  other  officer  designated 
as  stated  in  the  next  paragraph;  but  more  usually 
(and  advisably),  it  executes  the  form  Y  to  some  resi- 
dent person  or  agent. — Sec  ;>.  /  >'7. 

Where  it  does  not  adopt  the  latter  plan  the  land 
office  practice  requires  proof  that  the  officer  purport- 
ing to  act  for  the  company  was  authorized  to  make 
the  application.  Such  proof  may  consist  of  a  copy  of 
the  resolution  of  the  board  of  directors  instructing 
some  designated  officer  to  apply  for  patent  to  the 
claim  or  claims  mentioned,  certified  by  the  secretary 
under  the  corporate  seal. 

Mill  Site  Application. 

Where  a  mill  site  is  applied  for  separately  it 
must  be  upon  land  occupied  by  mill  or  reduction 
works  (p.  239).  In  such  case  the  forms  herein  given, 
are  sufficient,  changing  the  word  lode  to  mill  site, 
and  adding  the  two  forms  next  following.  The  price 

acre  is  also  the  same  (p.  235).  The  applications 
for  mill  sites  alone  are  rare,  they  being  usually 
applied  for  in  connection  with  a  lode. 

But  the  Land  Office  has  ruled  that  the  owner  of 
a  lode  already  gone  to  patent,  who  then  held  or 
afterwards  secured  title  to  a  mill  site  which  he  uses 
as  appurtenant  to  his  mine,  may  apply  for  a  patent 
to  the  mill  site  later  by  independent  application, 
upon  showing  the  use  of  the  mill  site  in  connection 
with  the  lode,  the  same  as  if  he  had  originally  joined 
both  in  one  application. — 22  L.  D.  496. 

7.          NM\  -MINI  KM       Al   I   1I>\\  IT. 

STATE  OF  COLORADO,  County  of  Clear  Creek:  ss. 

Clarence  Jarbeau  and  Benj.  C.  Catr<n.  Jr..  «':uh  of 
lawful  age  and  residents  of  Georgetown,  in  said  County, 
being  first  duly  sworn,  each  for  himself,  and  not  one  for  the 
other,  saith :  That  he  is  a  citizen  of  the  United  States  ;  that 
he  is  well  acquainted  with  the  Annie  Boyd  mill  site  claim 
of  John  A.  Emery,  situate  in  Queens  mining  district,  in  said 
County,  upon  which  said  John  A.  Emery  has  applied  for 
patent  of  the  Tinted  States,  and  knows  the  character  of 
snid  described  land,  having  frequently  been  actually  upon 
thf  same;  that  his  knowledge  of  the  land  is  such  as  to 


452  APPLICATION  FOR  PATENT. 

enable  him  to  testify  understandingly  with  regard  thereto ; 
that  there  is  not  to  his  knowledge  wfthin  the  limits  thereof, 
any  vein  or  lode  of  quartz, or  other  rock  in  place,  bearing 
gold,  silver,  cinnabar,  lead,  tin  or  copper,  or  any  placer, 
cement,  or  other  valuable  mineral  deposits,  or  any  deposit 
of  coal  ;  that  the  land  contains  no  salt  spring,  or  deposits 
of  salt  in  any  form  sufficient  to  render  it  chiefly  valuable 
therefor  ;  that  no  portion  of  said  land  is  claimed  for  mining 
purposes  under  the  local  customs  or  rules  of  miners  or 
otherwise ;  that  no  portion  of  said  land  is  worked  for 
minerals  during  any  part  of  the  year  by  any  person  or 
persons ;  that  said  land  is  essentially  non-mineral  land,  and 
that  he  has  no  interest  whatever  in  said  claim,  or  in  said 
application  for  patent. 

CLARENCE  JARREAU. 
BENJ.  C.   CATREN,  JR. 
Verification   as   in   form   BB. 

The  claimant  is  not  required  under  the  rules  as 
amended  to  file  his  own  affidavit  to  the  same  effect. — 
Rule  65. 

Where  a  mill  site  is  applied  for  in  connection 
with  a  lode  a  second  affidavit  substantially  according 
to  the  following  form  is  required. — 18  L.  0.  159. 

AA.      PROOF   OF    MILL    sm:    USED    i<>i:    MI  If  I  NO    MM:    MILL- 
ING)   PURPOSES. 

STATE  OP  COLORADO,  County  of  Garfleld:  ss. 

Before  me,  the  subscriber,  a  notary  public  in  and  for 
said  County,  personally  appeared  C.  N.  Qreiy  (claimant), 
and  Harry  Evans  and  James  IK.  Ross  (witnesses),  who 
being  duly  sworn  each  for  himself  and  not  one  for  the  other, 
saith  that  he  is  a  citizen  of  the  United  States  and  resides 
in  said  County.  That  he  is  familiar  with  the  Oagool  mill 
site,  survey  lot  No.  7666  B,  for  which  the  said  C.  N.  Orcig 
has  applied  for  patent  in  the  United  States  land  office  at 
Qlenicood  Springs,  Colorado.  That  the  ground  embraced  in 
said  survey  is  used  or  occupied  by  said  claimant  for  mining 
purposes,  to  wit:  as  a  dump  for  the  Ouartermain  lode;  ami 
contains  an  ore  house  used  in  the  working  of  said  lode;  also 
a  boarding  house  used  bu  miners  engaged  in  working  said 
lode;  also  a  tramway  and  Cornish  jig  used  in  operating  said 
lode  (etc.,  as  the  case  may  be). 

And  the  said  Harry  Evans  and  James  W.  Ross  sev- 
erally, say  that  they  have  no  interest  whatever  in  said  mill 
site  or  in  the  application  for  patent  therefor. 

C.  N.  GREIG. 

HARRY    EVANS. 

JAMES    W.    Ross. 
Verification   as   in   form   BB. 

The  improvements  must  be  in  the  nature  of 
mills,  flumes,  ditches,  or  other  things  incidental  to 


APPLICATION  FOR  PATENT.  453 

milling  or  mining.  Buildings  and  roads  not  used 
for  such  purposes  cannot  be  considered;  otherwise  if 
they  are  so  used.  Trails  off  the  claim,  used  for  carry- 
Ing  ore  have  been  accepted  as  part  of  the  improve- 
ments.—£  L.  D.  220.  See  p.  240. 

It  is  generally  advisable  to  apply  for  a  mill  site 
in  connection  with  a  lode  claim;  and  in  applying  for 
a  lode  patent  a  mill  site  can  be  included  and  surface 
for  building  purposes  readily  acquired,  at  a  cost  of 
$50  less  than  if  separate  applications  are  made.  See 
PP.  234, 

The  lode  is  always  distinguished  as  survey  lot 
"A" — the  mill  site  by  the  same  number  with  the 
addition  of  "B."  The  mill  site  may  be  in  another 
mining  district  or  in  a  section  different  from  that 
containing  the  lode. 

In  such  application  there  must  be  a  plat,  and  no- 
tice K  posted  on  both  lode  and  mill  site;  if  not  posted 
on  the  latter,  republication  will  be  required. — 25  L. 
D.  165;  21  Id.  373;  Rule  63. 

The  department  has  ruled  that  a  lode  inter- 
sected by  a  mill  site  or  placer  may  be  patented  only 
to  the  edge  of  the  intersecting  claim. — 13  L.  D.  146; 
in  Id.  186;  26  Id.  615;  2S  /</.  flW;  and  that  such  a 
location  is  not  valid  as  to  ground  on  the  other  side 
of  the  mill  site.— 26  L.  D.  615.  But  by  a  later  ruling 
both  parts  may  be  patented  if  the  vein  has  been  dis- 
covered on  both  sides. — 31  L.  D.  359. 

Two  mill  sites  not  containing  together  more 
than  five  acres  may  be  included  in  one  application. — 
D.  755.  See  p.  239. 

The  land  office  distinguishes  between  a  mere  wa- 
ter right  and  a  mill  site. — 5  L.  D.  190.  The  use  of  a 
spring  is  not  a  mill  site  occupation. — Id. 

PLACER  PATENT. 

Lodes  and  Placers  Distinguished. 

Only  metalliferous  deposits  in  place  are  consid- 
ered lodes  under  the  mining  act.— .9  L.  0.  165.  Every- 
thing else  of  a  mineral  character,  i.  e.,  lands  con- 
taining a  mineral  substance  rendering  them  of  more 


*ZA  APPLICATION  FOR  PATENT. 

value  for  the  extraction  thereof  than  for  surface 
purposes,  is  treated  as  placer  ground.  The  rulings 
on  this  point  are  cited  on  pp.  210-212.  In  addition 
to  the  cases  there  given  it  has  been  ruled  that  lime- 
stone for  lime  kiln  purposes  may  be  located  as  placer 
ground. — 9  L.  O.  5;  and  it  cannot  be  located  as  a  lode 
claim. — 23  L.  D.  353;  Id.  395.  Mica  may  be  entered 
as  a  mining  (presumably  a  placer)  claim. — 2  L.  O. 
131.  Iron  may  be  lode  or  placer,  according  to  the 
nature  of  the  deposit.  A  deposit  of  brick-clay  does 
not  make  placer  ground. — 6  L.  D.  161;  31  L.  D.  108. 

Placer  claims  require  a  material  subdivision 
into— 

(1)  Claims  located  on  unsurveyed  lands. 

(2)  Claims    located    by    adopting    the    govern- 
mental subdivisions  of  lands  already  surveyed. 

Placer  Patent  on  Unsnrveyed  Lands. 

In  applying  for  patent  on  a  placer  claim  located 
upon  unsurveyed  lands  the  foregoing  forms,  with 
obvious  alterations,  will  suffice. 

In  addition  to  such  forms  used  for  lode  applica- 
tions there  must  be  filed  in  the  Land  Office  with  the 
first  set  of  papers,  proof  that  the  placer  contains  no 
lodes  (BB)  excepting,  of  course,  such  as  are  espe- 
cially applied  for  in  the  application  itself,  or  ex- 
cluded therefrom  as  the  property  of  others,  and  a 
certified  copy  of  the  Descriptive  Report  (CC)  based 
on  L.  O.  Circular,  September  23,  1882,  1  L.  D.  544, 
Rev.  Ed.  685,  now  embodied  in  Rule  60,  p.  39}. 

BB.       PROOF    THAT     NO     KNOWN     fKDlfl     KXI-T     IN     PLACER 
CLAIM. 

STATE  OF  COLORADO,  County  of  Gilpin:  6s. 

John  C.  Jenkins  and  Thomas  H.  Potter,  each  of  law- 
ful age,  and  resident  in  Central  City,  in  the  said  County, 
being  first  duly  sworn,  each  for  himself,  and  not  one  for 
the  other,  saith.  that  he  is  a  citizen  of  the  United  States ; 
that  he  is  well  acquainted  with  the  Keystone  Placer  Mining 
Claim,  situate  in  Gregory  Mining  District,  County  of  Gilpin, 
State  of  Colorado,  claimed  by  John  Warden,  applicant  for 
United  States  patent  therefor  ;  that  for  many  years  he  has 
resided  near  to,  and  is  well  acquainted  with  the  character 
of  said  land,  having  frequently  passed  over  the  same ;  that 


APPLICATION  FOR  PATENT.  -i:>:> 

bis    knowledge  of   said   land   is   such    as   to   enable    him   to 
;i  regard  thereto,  and  that  there  is 

to  his  knowledge,  within  th»>  limits  thereof,  any  known 

or  lode  of  quartz  or  other  rock  in  place,  bearing  gold. 

silver,  cinnabar,  lead,  tin  or  copper,  upon  said  claim  or  any 

part   t hereof,  and  further,   that  he  has  no  interest  whatever 

In   the  said   placer  claim. 

.7<>r  R 

THOMAS    H.    TOTTER. 

sworn  to  before  me,  this  second  day 

of  f-  \     1>    1908,  and  I   hereby  certify   that   the  fore- 

<>  the  above  named  John  C.  Jenkins 

r<'tttr.  previous   to  their  names  being  sub- 

1   that  deponents  are   reputable  persons, 

to   whom    full    faith   and  credit  should  be  given. 

Jforrfe  H<; 

Notary  Public. 

This  affidavit  must  be  made  by  two  or  more  \vit- 
•>s    (Rule  26)    and    filed   in   the   Land   Office,   to- 
gether wit  lit    transcript  FF,  with  the  first  set  of  pa- 
pers. 

The  descriptive  report  the  surveyor  makes  out 
without  sjMM-ial  instruct  ions  on  receipt  of  "B"  the 
order  for  survey,  and  forwards  it,  with  the  field 
notes  of  the  survey,  to  the  Surveyor  General. 

CC.     i  in    IM  RKPORT. 

Surrey  \o.  *7000. 

neral  Land  Office  Circular  "X."  of  September 
1882,  upon  the  placer  mining  claim  known  as  the 
limed  by  8.  O.  Shaw — situate,  in 
Spanish  Har  mining  district.  Clear  Creek  County, 
Colorado,  embracing  160  acres,  in  section  8,  township 
3  8.  range  7?  n.  >,rfi  /'  \! .  Examination  made  / '•  '• 
ruary  5,  1908,  by  Frank  A.  Jfari"  i  s.  Mineral 

(a)  The  soil  is  a  black  loam,  varying  from  3  to  6 
inches  in  depth,  underlaid  with  auriferous  gravel.  The 
timber  consists  of  a  scattering  growth  of.spruce  and  yellow 
pine  trees,  and  along  the  banks  of  the  creek  there  is  a 
dense  growth  of  small  willows. 

Beaver    Creek,    a    small    stream    about    10    feet 
wide,  runs  in  a  northeasterly  direction  through  the  claim. 

;  kings  upon  the  claim  consist  of  an  open 
nit  '.'"  fiM-t  l.-iiK.  _»>  feet  wide  and  10  feet  deep.  Course  N. 
80°  E.  The  center  of  the  westerly  end  bears  N.  5°  W.  30 

*If  on  surveyed   lands  and  conforming  to  legal   sub- 
ions    no    survey    number    is    given    and    no    survey    is 
required. 


456  APPLICATION  FOR  PATENT. 

feet  from  corner  No.  4.  A  ditch  850  feet  long,  2  feet  wide 
and  18  inches  deep,  course  northeasterly,  the  head  of  which 
bears  N.  3°  E.  120  feet  from  corner  No.  6.  A  shaft  3x6 
feet,  10  feet  deep,  which  bears  from  corner  No.  4.  N.  2° 
W.  75  feet,  and  a  drift  3x6  feet,  18  feet  long,  which  bears 
from  corner  No.  4,  N.  37°  E.  420  feet. 

(<Z)  This  claim  is  located  about  three  miles  in  a 
southeasterly  direction  from  the  town  of  Maysville,  and  one 
mile  west  of  Clear  Creek  Junction. 

(e)  The    Baker    and    Swansea    lodes,    located    about 
three  miles  in  a  northerly  direction  from  this  claim,  are  the 
nearest  well  known  lode  claims.     No  lode  has  ever  been  dis- 
covered upon  this  claim  or  in  the  immediate  vicinity. 

(f)  The    claim    is    well    adapted   for    placer    mining 
purposes.     Water   has   been   brought   from   Beaver   Creek   to 
work  the  lower  portion  of  the  claim,  and  it  can  be  brought 
from  a  point  in  the  same  creek  about  %  mile  above  to  work 
the  whole  claim. 

(0)  The  works  or  expenditures  upon  this  claim, 
placed  thereon  by  the  claimant  and  his  grantors,  consist  of 
an  open  cut  90  feet  long,  20  feet  wide  and  lo  fret  deep. 
Course  N.  80°  E.  The  center  of  the  westerly  end  1 
N.  5°  W.  30  feet  from  corner  No.  4.  Value  $350.  A  dit.h 
850  feet  long,  2  feet  wide  and  18  inches  deep,  the  head  of 
which  bears  N.  3°  E.  120  feet  from  corner  No.  6.  Course 
northeasterly  to  the  open  rut  mentioned  above.  Value  $200. 
A  shaft  3x6  feet,  10  feet  deep,  bears  from  corner  No.  4, 
N.  2°  W.  75  feet.  Value  $80. 

(7t)  There  are  no  salt-licks,  salt-springs,  mines  other 
than  the  claimant's  workings,  nor  mill  seats  upon  this  claim. 

FRANK  A.  MAXWELL, 
U.  S.  Mineral  Surveyor. 

I,  Frank  A.  Maxwell,  United  States  Mineral  Survevor. 
do  solemnly  swear  that  in  pursiian.ce  of  an  order  received 
from  the  United  States  Surveyor  General  for  Colorado,  dated 
February  2,  1908,  I  have  made,  under  the  provisions  of 
General  Land  Office  Circular  "N,"  approved  September  - '••. 
1882,  a  personal  and  thorough  examination  upon  the  prem- 
ises, of  the  placer  mining  claim  of  8.  G.  Shmr,  known  as 
the  Hyena  placer,  situate  In  Spanish  Bar  Mining  District, 
Clear  Creek  County,  Colorado,  embracing  160  acres,  in  Sec- 
tion 8,  Township  Ao.  S,  8.  Range  No.  75  W.  6(Ji  /'.  .I/.,  and 
that  my  report  of  such  examination,  hereto  attached,  is 
specific  and  in  detail,  and  is  a  full  and  true  statement  of 
the  facts  upon  all  the  points  specified  in  said  circular. 

FRANK  A.  MAXWELL, 

Subscribed  and  sworn  to  by  the  said  Frank  A.  Max- 
well, U.  S.  Mineral  Surveyor,  before  me,  a  notary  public, 
this  6th  day  of  February,  1908. 

Frank  J.  Hood, 

[SEAL.]  Notary  Public. 


AI'IM.h'ATh'N    K»  'K   PATKNT. 

This  descriptive  report  must  be  corroborated  by 
the  affidavit  of  one  or  more  disinterested  witnesses 
as  follows — Rule  60: 

DD.      COBROBOKA  1  1  \  K    K1TOBT. 

.  E  OP  COLORADO,  County  of  Clear  Creek. \  ss. 

William  Cooper  and  Patrick  3/cA'w/fy  being  first  duly 
sworn,  each  severally  deposes  and  says  that  he  is  personally 
and  well  acquainted  with  the  placer  mining  claim   of  > 
Shaic.   kii"\\n   :<•>   ti.--  placer,  situate  in  Spanish   lint 

mining  district,  C/«  •  unty,  Colorado,  embracing  160 

acres.  •>/(///    Wo,   3  8.   ranu< 

and  also  with  the  character  of  all. the  land  included  in  sain 
claim,  and  has  been  so  acquainted  for  two  years  last  past  : 
that  his  knowledge  of  said  claim  and  land  is  derived  from 
personal  observation,  and  is  such  as  to  enable  him  to  testily 
rstandlngly  with  regard  thereto;  that  he  has  carefully 

i  the  foregoing  report  of  Frank  A.  M<i.ri<,u.  r  s.  Min 
•  •nil  Surveyor,  ana  that  to  his  own  personal  knowfedge  said 
report  is  In  all  respects  true  and  accurate. 

w  1 1. 1.  JAM   COOPER. 

Subscribed  and  sworn  to  by  the  above  named  persons 
before  me,  this  6th  day  of  February,  1908. 

John  Tom nu. 
[SEAI ..]  Notary  Public. 

The  descriptive  report  CC  with  its  Corroborative 
<>rt  DD  endorsed  or  attached,  the  Surveyor  Gen- 
eral approves  in  the  following  form: 

EE.        AI'IM:<-\  <   IMPI  I\l      K!  .PORT. 

DEPARTMENT  OF   THK    1 

Office  of  U.  8.  Surveyor  General. 

Denver,   Colorado,    /'«/<»•»/»/»•»/    /:».   r.W8. 

I'nlted  States  Surveyor   General   for 

Colorado,  do  hereby  certify  that  the  foregoing  and  annexed 

report    of   the   examination    of   the    placer    mining   claim    of 

S.   O.  Shaw,  known   as   the   Hyena-  placer,   made   by   United 

s  Mineral  Surveyor  Fran!  »//.  under   the  pro- 

!     Land    Office    Circular    "N,"    approved 

September    23,     IKS'J:    and    under    my    instructions    dated 

nary  5,  1908,  has  been  carefully  examined  and  conforms 

in  all  respects  to  the  requirements  of  said  circular ;  and  said 

report  is  hereby  approved. 

w.  <;.  I.KWIS. 
U.  S.  Surveyor  General  for  Colorado. 

After  endorsement  of  such  approval,  the  Sur- 
veyor General  certifies  a 


458  APPLICATION  FOR  PATENT. 

FF.       TRANSCRIPT   OF   DESCRIPTIVE   REPORT, 

Including  its  exhibits  or  endorsements  DD  and   EE 
as  follows: 

GG.       CERTIFICATE   TO   DESCRIPTIVE    KKPORT. 

DEPARTMENT   OF    THE    IXTKKIUK. 
Office  of  U.  S.  Surveyor  General. 

Denver,   Colorado,   Febrtunii    /.</.   i'.)08. 
I,  W.  G.  Lewi*,  r.  S.   Surveyor  General  for  Colorado. 
do  hereby  certify  that  the  annexed  is  a  full,  true  ami 
rect    copy    of    the    report,    made    under    the    provisions    of 
General    Land   Office   < 'uvular    "NY*   approved    Scpt.'inl.rr    -j:;. 
1882,   and   of  the   affidavits   and   approval   attached    to   said 
report  on  the  placer  mining  claim  of  8.  G.  Stunr.  known  as 
the   Hyena   placer,   situate   in   Spanish   Bar  mining    district. 
Clear  Creek    County,  Colorado,  Denver  land  district,  as  the 
same  appear  on  file  in  this  office. 

W.  G.   LEWIS, 
U.  S.  Surveyor  General  for  Colorado. 

This  transcript  so  certified,  together  with  the 
field  notes  and  plats,  is. sent  to  the  claimant  or  to  the 
surveyor  who  is  supposed  to  deliver  all  papers  to  the 
attorney  for  the  applicant  to  enable  him  to  make  out 
the  notices  "K"  which  he  causes  to  be  posted  and 
published,  and  proceeds  in  all  further  respects  the 
same  as  on  application  for  lode  patent. 

Application  for  Patent  on  Surveyed  Lands. 

The  language  of  the  Congressional  Act  as  to  this 
class  of  claims  is  obscure,  but  it  seems  that  where 
a  placer  deposit  is  found  on  surveyed  lands,  discov- 
ery, location  and  record  must  be  made  exactly  as  in 
the  case  of  discovery  on  unsurveyed  public  domain, 
except  that  instead  of  a  description  by  metes  and 
bounds,  the  location  certificate  should  describe  it  as 
the  northeast  quarter  of  section  8,  township  10,  etc., 
using  one  name  for  each  twenty  acres  and  not  claim 
ing  more  than  160  acres  by  one  record.  It  is  advis- 
able to  give  it  a  name  as  in  other  cases. 

Although  already  surveyed  it  should  be  staked, 
marking  the  stakes  with  the  name  of  the  claim  and 
number  of  the  corner  to  indicate  the  appropriation, 
replacing  the  government  stakes  if  not  then  found. 
See  p.  218. 


APPLICATION  FOR  PATENT.  459 

When  the  placer  application  is  for  an  exact  quar- 
ter section,  or  a  series  of  forties  or  tens  recorded 
and  adopted  as  the  claim,  no  order  for  survey,  sur- 
.  plat  or  field  notes  are  required,  their  office  hav- 
ing been  fulfilled  by  the  prior  government  survey  al- 
ready made  and  nlatted  with  the  Surveyor  General, 
and  the  application  may  be  made  in  the  Land  Office 
without  any  proceedings  whatever  in  the  Surveyor 
General's  office. 

The  proof  of  $500  expenditure  in  such  case  should 
be  made  by  the  affidavit  of  two  or  more  disinterested 
witnesses  acquainted  with  the  claim. — 25  L.  D.  550; 

The  descriptive  report  in  such  cases  is  not  ob- 
ligatory.  ;  L.  D.  390.  And  the  Commissioner  of  the 
General  Land  Office,  by  letter  of  October  20,  1900,  to 
the  Surveyor  General  of  Colorado,  instructed  that 
office  that,  where  legal  subdivisions  are  taken,  a  de- 
scriptive report,  though  approved  by  the  Surveyor 
General,  would  not  be  official  unless  specially  re- 
quired by  the  Department. 

The  tances  in  which  such  report  would 

be  required  by  the  department  are  uncertain,  but 
\\IHH  nnuhed,  would  doubtless  be  ordered  through 
the  office  of  the  Surveyor  General. 

If  any  ground  is  excepted  so  that  the  claim  is 
not  an  exact  conformation  to  the  subdivisions  an  offi- 
cial survey  is  required. — 6  L.  D.  580;  in  which  case 
the  report  would  doubtless  be  necessary;  but  no  offi- 
cial survey  is  required  if  the  excluded  ground  be 
paten  ted.-^J.f  L.  D 

Where  a  Placer  Contains  Known  Lodes  Owned 
by  the  applicant,  they  are  applied  for  as  parcels 
of  the  placer  application  and  are  especially  desig- 
nated on  the  survey  by  their  names  but  without 
separate  numbers  and  platted  each  with  a  width  of 
50  I'eet,  or  with  the  full  width,  if  so  located,  and  the 
claimant  elects  to  survey  them  for  such  full  width, 
£nd  to  pay  the  lode  price  for  such  full  width.  If 
such  lodes  have  never  been  previously  located  a  for- 


460  APPLICATION  FOR  PATENT. 

mal  discovery  and  record  of  the  same  should  be  made 
and  abstract  filed  the  same  as  for  placer. 

In  requesting  order  for  survey  name  the-  lodes, 
i.  e.,  insert  in  form  "A"  The  Special  Delivery  Placer, 
including  fliree  known  lodes,  to  wit:  The  Silence, 
The  Security  and  The  Celerity,  etc.,  and  send  copies 
of  location  certificates  of  each  lode. — See  p.  419. 

Where  the  lode  and  placer  do  not  touch  they 
cannot  go  in  the  same  application. — 5  L.  0.  162. 

Patenting  Known  Lode  Within  Placer  Patent. 

Although  known  lodes  are  distinctly  excepted 
from  the  placer »patent  and  the  department  originally 
recognized  this  exception  (7  L.  O.  100)  it  was  later 
ruled  in  the  case  of  the  Pike's  Peak  Lode,  10  L.  D. 
200;  14  Id.  47,  that  the  land  office  would  not  issue 
patent  to  the  owner  of  such  excepted  known  lode 
unless  the  placer  patent  had  been  either  judicially 
set  aside  to  the  extent  of  the  ground  covered  by  the 
surface  of  the  known  lode  or  the  placer  owner  had 
quit  claimed  such  surface  back  to  the  United  States 
so  as  to  revest  the  title  in  the  government. 

This  untenable  position  of  the  department  was 
persisted  in  until  the  South  Star  Lode  case,  20  L.  D. 
204,  was  decided,  where  the  whole  subject  was  re- 
viewed and  the  ruling  made  that  patent  may  issue 
to  the  lode  owner  "when  it  had  been  ascertained  by 
inquiry  instituted  by  the  department"  that  a  lode  was 
known  to  exist  at  the  date  of  the  application  for  the 
placer  patent,  as  well  as  in  cases  where  a  judicial 
decree  to  the  same  effect  had  been  rendered.  The 
result  of  this  ruling  is  that  the  lode  owner  may  now 
apply  for  patent  as  in  any  ordinary  case  after  first 
obtaining  from  the  land  office  an  order  to  ascertain 
whether  the  lode  was  known  to  exist  before  the 
placer  entry.  Butte  Co.  21  L.  D.  12-~>.  No  rules  have 
been  since  published  directing  how  much  inquiry 
should  be  made,  but  doubtless  it  would  be  required 
to  give  notice  to  the  holder  of  the  placer  patent,  who 
would  be  allowed  to  appear  and  contest  the  petition 
for  the  order.— 27  L.  D.  676.  See  p.  22S. 


APPLICATION  FOR  PATENT.  461 

If  the  application  is  allowed,  the  placer  claim- 
ant, if  he  contests  the  fact  that  there  was  any  valid 
known  lode  on  the  proper  date,  should  file  his  ad- 
verse claim  or  doubtless  he  could  allow  the  patent  to 
proceed  and  still  contest,  in  ejectment  brought  by 
either  side,  the  validity  of  the  later  lode  patent,  as 
in  the  case  of  Iron  8.  Co.  v.  Campbell,  16  M.  R.  J/v 
Instance  where  patentee  of  placer  was  not  permit- 
ted to  subsequently  patent  a  lode  within  the  patented 
placer.— 27  L.  D.  661. 

As  to  What  Constitutes  a  Known  lode,  the  rul- 
ings are  that  there  must  be  mineral  worth  work- 
ing disclosed  at  the  time  of  the  placer  entry. — 10 
L.  D.  156;  IS  Id.  86.  And  the  general  test  on  this 
class  of  points  seems  to  be  that  the  land  as  a  lode 
claim  must  have  been  of  greater  value  than  for  the 
;  cultural,  mill  site,  placer  or  other  use,  under 
which  it  was  applied  for  and  granted. — 12  L.  D.  612; 
1 1  I 'I.  ~>',.  See  p.  224. 

Necessity  to  Adverse. 

Although  not  bound  as  in  the  case  of  lode  against 
lode  or  placer  against  placer  by  failure  to  adverse, 
the  lode  claimant  is  under  the  practical  necessity  to 
file  and  maintain  his  adverse,  in  order  to  place  his 
rights  beyond  cavil  and  secure  an  express  excep- 
tion of  his  lode,  or  a  patent  under  the  same  proceed- 
ings.— See  p.  226. 

Group  Claims. 

In  the  case  of  the  St.  Louis  Co.  v.  Kemp,  decided 
in  1881  (11  M.  R.  673),  a  placer  ha'd  been  patented 
irf  excess  of  160  acres.  The  Supreme  Court  sustained 
the  patent,  and  in  support  of  their  decision  asserted 
that  a  miner's  claim  might  consist  of  several  loca- 
tions; that  several  contiguous  locations  being  pur- 
chased by  one  man  became  his  claim.  They  say: 
"Such  is  the  general  understanding  of  miners  and 
the  meaning  they  attach  to  the  term."  Even  what 
seem  to  us  the  erroneous  impressions  of  our  court 
of  last  resort  command  respect  and  its  decisions 


462  APPLICATION  FOR  PATENT. 

are  none  the  less  law,  even  though  they  compel  us  to 
accept  new  meanings  to  the  words  of  our  language. 
In  fact  where  claims  under  district  rules  were  lim- 
ited to  100  feet  square  or  other  small  dimensions,  it 
has  been  very  common  to  buy  up  many  such  claims 
and  record  them  as  one  location.  The  interpreta- 
tion was,  nevertheless,  strictly  within  the  province 
and  range  bf  judicial  construction. 

Prior  to  the  Kemp  case,  supra,  the  Land  Office 
had  treated  each  lode  location  as  a  single  mining 
claim  and  the  practice  was  to  allow  but  one  to  be 
applied  for  in  one  proceeding.  After  the  Kemp  case, 
the  Department  began  to  allow  applications  for 
groups  of  lodes,  permitting  any  number  of  full  lode 
claims  to  be  patented  as  one  claim,  and  requiring 
only  $500  expenditure  on  the  entire  group.  The 
only  restriction  imposed  was  that  the  several  claims 
should  be  contiguous;  i.  e.,  should  overlap  or  touch, 
not  merely  corner  with  each  other. — So  L.  D.  485. 

This  manifestly  wrong  construction  was  adhered 
to  until  the  publication  of  what  is  now  Rule  ^8  of  the 
regulations  requiring  $500  on  each  location  or  for 
the  group  the  aggregate  of  $500  multiplied  by  the 
number  of  locations.  In  his  official  letter  of  June  21, 
1898,  27  L.  D.  91,  the  Hon.  Secretary  considers  the 
whole  matter  and  comes  to  a  correct  definition  of  the 
term  "claim,"  as  being  the  equivalent  of  the  word 
"location." 

Although  we  have  always  believed  that  the  in- 
tent of  the  Act  of  Congress  was  to  require  every  lode 
location  to  make  a  separate  application,  it  has  now 
become  the  settled  practice  of  the  Land  Office  to 
allow  group  applications  and  when  perfected  by  pat- 
ent the  patent  would  doubtless  be  upheld. 

Where  several  lodes  are  thus  applied  for,  or 
where  a  placer  includes  lodes,  they  receive  only  one 
survey-lot  number,  but  the  corners  of  each  are  given 
a  separate  consecutive  numerical  designation,  begin- 
ning with  Cor.  No.  1  in  each  case,  which  must  be 
connected  with  a  government  corner  or  U.  S.  monu- 
ment.— Rules  135,  151.  The  survey  and  plat  should 


AFPLJCATIOF  F<»R  PATBNT.  463 

show  the  boundaries  of  each  location. — J  L.  D.  199;  6 
Id.  808;  29  Id.  585. 

A  group  composed  of  lodes  and  placers  may  be 
patented  if  contiguous. — 29  L.  D.  7. 

The  rejection  from  entry  of  one  claim  of  a  group 
is  a  rejection  of  the  application  to  that  extent  only. — 
32  L.  D.  220. 

What  Constitutes  Improvements. 

Underground  workings,  cross-cuts  or  tunnels  (on 
or  off  the  ground,  provided  they  are  held  by  appli- 
cant for  its  benefit,  and  are  bona  fide  intended  to  cut 
it  i.  buildings,  roads,  flumes,  fixed  machinery,  etc., 
or  the  result  of  any  other  bona  fide  expenditures, 
constitute  improvements. — Rule  151. 

Roads,  to  the  extent  they  are  on  the  claim: 
boarding-house,  office,  bunk-house,  blacksmith-shop 
and  powder-house,  when  shown  to  be  essential  to 
operations. — 34  L:  D.  556. 

Excepting  labor  which  leaves  no  trace  of  itself, 
surh  as  hoisting  water,  whatever  counts  for  annual 
labor  will  count  for  the  $500  improvements. — See 
p.  100. 

Undivided  interests  in  tunnels,  etc.,  held  in  com- 
mon with  parties  who  are  not  applicants,  are  allowed 
to  count  AS  parcel  of  the  necessary  $500  improve- 
ments. 

The  value  of  a  common  improvement,  such  as 
a  shaft  or  tunnel,  must  be  distributed  equally  to  all 
the  claims  in  the  group. — So  L.  D.  S61. 

Old  Improvements  on  the  Ground  may  be  pur- 
•  lias.  .1  from  the  rightful  owners,  and  so  enure 
to  the  benefit  of  the  applicant.  The  deed  con- 
ing them  should  be  a  quit  claim  of  all  vendor's 
interest  in  the  claim  under  the  name  by  which  pat- 
ent is  sought,  and  of  all  improvements  thereon,  etc., 
and  where  abandoned  property  is  relocated  or 
jumped,  the  old  improvements  do  not  count  without 
such  purchase. — 30  L.  D.  289,  322.  The  department 
in  an  early  circular  intimated  that  they  could  not 
even  be  purchased  (Copp,  M.  L.  259) ,  but  it  later 


464  APPLICATION  FOR  PATENT. 

ruled  that  the  purchaser  is  entitled  to  the  benefit 
of  all  expenditures  made  by  his  grantor. — 21  L.  D. 
440.  Work  done  on  placer  prior  to  location  held  to 
count. — 20  Id.  455. 

What  Not  Sufficient. 

Among  improvements  cannot  be  counted  dwelling 
houses  or  other  structures,  machinery  or  roadways 
not  associated  with  mining. — Rul$  157. 

Quarrying  marble  on  one  claim  will  not  count 
for  other  claims  in  the  group. — 32  L.  D.  85.  Success- 
ive development,  as  working  up  stream  from  lower 
placer,  held  insufficient  for  upper  placer. — 32  L.  D. 
402.  Improvements  on  a  group  will  not  be  credited 
on  an  adjoining  claim  if  any  of  its  owners  have  no 
interest  in  the  group. — 32  L.  D.  595. 

The  Department  refused  to  accept  a  stamp  mill 
though  upon  the  claim  and  used  exclusively  to  work 
the  ore  it  produced  on  the  technical  ground  that 
treatment  of  the  ore  is  not  a  mining  but  a  post-mrn- 
ing  expenditure. — 35  L.  D.  493.  We  cannot  see  how 
such  ruling  can  stand  under  the  unqualified  words  of 
the  Statute:  "improvements  made  upon  the  claim." 

Completed  Pending  Publication. 

It  is  not  essential  that  the  $500  worth  of  im- 
provements should  exist  on  the  ground  at  the  time 
of  the  survey.  They  may  be  completed  at  any  time 
during  the  period  of  publication. — 29  L.  D.  491.  In 
such  cases  the  Surveyor  General  endorses  diagram 
"F"  with  a  certificate  not  containing  the  latter  part 
of  "G."  The  surveyor  in  his  field  notes  describes  such 
improvements  as  may  exist,  and  adds,  in  substance: 
"These  improvements  are  not  worth  $500."  When 
completed  the  surveyor  sends  a  special  affidavit  to  the 
Surveyor  General,  who  files  it  and  forwards  his  cer- 
tificate to  the  surveyor,  or  to  the  land  office  direct,  if 
the  surveyor  so  request.  An  extra  deposit  of  $5  is 
required  when  this  affidavit  is  made  subsequent  to 
the  first  filing  of  field  notes. 

The  department  holds  (overruling  previous  de- 
cisions), that  the  statutory  requirements  (R.  8.  Sec. 


APPLICATION  FOR  PATENT.  465 

2325)  as  to  the  Surveyor  General's  certificate  of  im- 
provements is  directory  only,  and  that  it  may  be 
made  after  the  expiration  of  the  sixty  days'  publica- 
tion.— 25  L.  D.  550;  26  Id.  1 

Where  the  Applicant  Dies  Before  Entry. 

On  filing  proof  of  decease  the  papers  are  per- 
fected either  by  an  heir  or  the  executor  or  adminis- 
trator, and  patent  issues  to  "the  heirs  of"  the  appli- 
cant.— 28  L.  D.  14. 

Where  he  dies  after  entry  the  patent  issues  in 
the  name  of  the  deceased. — 2  L.  D.  762. 

Application  by  Trustee. 

Any  party  applying  to  make  entry  as  trustee 
must  disclose  fully  the  nature  of  the  trust  and  the 
name  of  the  cestui  que  trust;  and  such  trustee, 
as  well  as  the  beneficiaries,  must  furnish  satisfac- 
tory proof  of  citizenship;  and  the  names  of  benefi- 
ciaries, as  well  as  that  of  the  trustee,  must  be  in- 
serted in  the  final  certificate  of  entry. — Rule  54.  A 
claim  cannot  be  patented  for  the  benefit  of  a  foreign 
corporation. — 10  L.  D.  641;  20  Id.  379. 

Patent  to  Assigns. 

On  bringing  up  abstract  to  date  the  land  office 
has  issued  patents  to  purchasers  from  the  entry-man. 
But  as  the  deed  carries  the  patented  title  this  is  not 
necessary;  nor  is  it  regular.  The  land  office  cannot 
be  presumed  to  follow  title  after  entry,  and  might 
by  such  procedure  issue  it  to  a  party  not  entitled  In 
equity  to  take  it. 

Under  present  practice  the  Department  disre- 
gards all  transfer  of  interests  in  the  claim  and  issues 
patent  direct  to  the  applicant.— S3  L.  D.  127;  Rule  71. 
But  the  deed  of  the  applicant  carries  the  patented 
title  when  granted  to  the  buyer. — Slothower  v. 
Hunter,  88  P.  36. 

Application  Without  Record  Title. 

Where  the  title  is  old  and  complicated  a  party 
may,  without  filing  abstract  supply  the  same  by 


466  APPLICATION  FOR  PATENT. 

affidavits  under  R.  S.  §  2332,  as  explained  by  Land 
Office  Rules  74-77,  that  he  has  worked  and  possessed 
the  claim  for  the  limitation  period  of  seven  or  other 
number  of  years  fixed  by  the  local  Statute. 

Application  for  Part  of  Claim. 

An  owner  applying  for  patent  on  part  of  his 
claim  including  the  discovery  shaft  was  held  not  to 
have  abandoned  the  other  end  of  his  claim  in  Millrr 
v.  Hawley,  74  P.  980. 

But  where  the  applying  claim  was  divided  into 
two  parcels  and  under  compulsion  of  a  land  office  rul- 
ing the  applicant  elected  to  enter  but  one  it  was  held 
that  such  election  was  an  abandonment  of  the  other 
parcel. — Ourney  v.  Brown,  77  P.  357. 

Conflicting  Applications. 

Where  an  application  is  pending  or  entry  has 
been  made,  a  subsequent  application  for  the  same 
land  should  not  be  accepted. — 26  L.  D.  81;  29  Id.  29, 
114,  226;  31  Id.  59;  82  Id.  220;  and  no  adverse  need 
be  filed  against  a  subsequent  application  erroneously 
accepted.— 29  Id.  160;  Steel  v.  Gold  Co.  18  Nev.  80.  An 
adverse  suit  by  entry-man  does  not  waive  rights  ac- 
quired under  the  entry. — 29  L.  D.  !Ut.  But  the  gov- 
ernment will,  in  some  instances,  take  notice  of  an  ad- 
verse by  prior  applicant  and  stay  proceedings.—.?.? 
I 'I.  fflW;  ,?.7  Id.  268. 

The  Surveyor  General  gives  to  any  applicant  an 
approved  survey  showing  the  conflicts  with  prior  sur- 
veys, but  not  excluding  them  as  against  the  survey 
asked  for,  and  allowing  the  claimant  to  proceed  as 
he  may  or  can,  to  apply  for  patent  for  the  entire 
ground  within  his  exterior  lines,  although  wholly  or 
partly  covered  by  previous  patents.  It  is  left  to  the 
land  office  to  bar  the  application  so  far  as  it  pretends 
to  include  ground  previously  patented  or  applied  for. 
—See  p.  139. 


APPLICATION  FOR  PATENT.  467 

Variance  Between  the  Locus  and  the  Record  of 

Claims. 

Where  no  conflict  between  official  surveys  is 
shown  by  the  records  but  a  conflict  in  fact  exists; 
or,  where  a  conflict  is  shown  by  the  records  when 
none  in  fact  exists  as  the  claims  are  staked  on  the 
ground,  the  Department  will  order  a  hearing  to  de- 
termine the  actual  locus  of  the  claims. — 33  L.  D.  /'/. 
0  p.  56. 

Rulings  as  to  Posting. 

The  notice  "K"  must  remain  posted  on  the  laml 
office  bulletin  during  the  whole  period  of  sixty  days 
— and  the  60  days  do  not  begin  to  run  until  it  is 
1  /  /  D,  '>84;  Rev.  Ed.  512;  5  L.  D.  510. 

Posting  notice  inside  an  open  shaft  house  or  on 
the  shaft  house  held  to  be  in  a  "conspicuous  place." 
—.9  L.  O.  113;  22  L.  D.  624;  enclosing  notice  and  plat 
in  oil-cloth  envelope  appropriately  marked  and  tacked 
to  post  held  sufficient. — 33  L.  D.  238;  but  placing  no- 
tice in  a  box  on  the  ground  among  large  boulders  ami 
not  near  shaft,  held  not  a  conspicuous  .place.—.'/  L. 
D.  336. 

Allowing  Application  to  Sleep. 

Failure  to  prosecute  application  to  completion 
within  a  reasonable  time  after  termination  of  pro- 
ceedings constitutes  waiver  of  rights  secured  under 
the  application.— 29  L.  D.  62,  301,  308,  359.  /'//;  95 
Id.  &7;  Unit*  56.  A  delay  beyond  the  end  of  the  cal- 
endar year  after  publication  held  fatal,  where  a  hos- 
til«'  relocation  had  been  made.— 31  L.  D.  69;  32  Id. 
An  excusable  delay  must  be  one  caused  by  ad- 
verse proceedings  under  the  mining  laws. — 34  L.  D. 

Miscellaneous  Rulings  on  Patent  Application. 

Where  application  is  begun  in  the  wrong  land 
district  proceedings  must  be  de  novo,  after  error  dis- 
covered.—11  L.  D.  282. 


468  ADVERSE  CLAIM. 

In  the  case  of  the  Alaska  Placer,  which  was 
partly  in  one  land  district  and  partly  in  another,  the 
Secretary  ruled  that  posting  on  the  claim  and  in  the 
Land  Office,  and  the  newspaper  publication  must  be 
made  in  both  districts. — 34  L.  D.  40.  This  ruling 
necessitates  practically  a  separate  and  complete  ap- 
plication in  each  district. 

When  the  land  office  is  closed  during  a  part  of 
the  period  of  60  days  the  time  of  closing  should  not 
be  counted  as  part  of  the  advertising  period. — 1  L.  D. 
584;  Rev.  Ed.  572.  A  claim  already  patented  cannot 
be  made  the  basis  of  a  second  application  for  more 
surface. — 9  L.  0.  113. 

A  co-owner  omitted  from  application  cannot  by 
subsequent  forfeiture  proceedings  against  the  appli- 
cant, acquire  right  in  himself  to  make  entry. — 32  L. 
I).  M. 

A  discovery  on  the  dip  of  a  lode  whose  apex  is 
inside  a  prior  valid  location  is  void,  and  on  protest 
alleging  that  fact  the  department  will  determine  the 
question.— 33  L.  D.  142. 

Surveyors  General  and  Deputy  Mineral  Sur- 
veyors are  disqualified  as  applicants  for  mineral  land. 
—  '.9  L.  D.  333. 

Limitation  of  Entries. 

The  A.  C.  of  1889  (1  Sup.  192)  limiting  the  total 
acreage  of  the  aggregate  of  entries  under  all  the  land 
laws  to  320  acres  to  one  individual,  is  construed  by 
Act  of  1891  (1  Sup.  946)  to  not  apply  to  mineral  en- 
tries. 


ADVERSE  CLAIM. 


Sixty  Days  to  File. 

R.  S.  Sec.  2325.     *     *     *     —If  no  adverse  claim  shall 
have   been   filed   with    the   register   and   the   receiver   of    the 

R  roper  land-office  at  the  expiration  of  the  sixty  days  of  pub- 
cation,  it  shall   be  assumed  that  the  applicant  is  entitled 
to  a  patent,  upon  the  payment  to  the  proper  officer  of  five 
dollars    per    acre,    and    that    no    adverse    claim    exists ;    and 


ADVERSE  CLAIM.  469 

thereafter  no  objection  from  third  parties  to  the  Issuance  of 
a  patent  shall  be  heard,  except  It  be  shown  that  the  appli- 
cant has  failed  to  comply  with  the  terms  of  this  chapter. 

Extent — Boundaries — Stays  Proceedings. 

R.  S.  Sec.  2326. — Where  an  adverse  claim  is  filed  dur- 
ing the  period  of  publication,  it  shall  be  upon  oath  of  the 
person  or  persons  making  the  same,  and  shall  show  the 
nature,  boundaries,  and  extent  of  such  adverse  claim,  and 
all  proceedings,  except  the  publication  of  notice  and  making 
and  filing  of  the  affidavit  thereof,  shall  be  stayed  until  the 
controversy  shall  have  been  settled  or  decided  by  a  court  of 
competent  jurisdiction,  or  the  adverse  claim  waived. 

Thirty  Days  to  Bring  Suit. 

It  shall  be  the  duty  of  the  adverse  claimant,  within 
thirty  days  after  filing  his  claim,  to  commence  proceedings 
in  a  court  of  competent  jurisdiction,  to  determine  the  ques- 
tion of  the  right  of  possession,  and  i>n>st  <  ut<>  the  same  with 
reasonable  diligence  to  final  judgment  :  and  a  failure  so  to 
do  shall  be  a  waiver  of  his  adverse  claim. 

An  adverse  claim  must  be  made  during  the 
period  of  sixty  days  publication,  which  is  construed 
to  mean  or  on  before  the  sixtieth  day  after  the  date 
of  first  newspaper  publication,  such  date  being  ex- 
cluded in  the  calculation.—  l.l  L.  l> 

The  proceedings  are  as  follows:  the  adverse 
claimant  subscribes  and  verifies  his 

HH.       ADV!  1^1      (  I  AIM. 

United  States  Land  Office  at  Pueblo,  Colorado : 

In  the  matter  of  the  application  of  C.  A.  \\'<>t<ntt 
for  a  United  States  patent  to  th.-  /:•»//•  Lode  mining  cl:iim. 
situMtf  in  ',(/,/,/,  <v»,/;  mining  district,  County  of  7Y//< » . 
State  of  Colorado. 

To   the   Register   and   Receiver   of   the   United    States    Land 
Office,  and  to  the  above  named  claimant : 

\s,    C.    A.    Wolcott    did,    on    the   16th    day    of 
mber,  A.   D.  1907,  file  in  the  district  land  office  of  the 
United  States,  at  Pueblo,  Colorado,  a  certain  plat  of  a  sur- 
<>f  a   certain  lode,   together  with   his  application   for   a 
limed  States  patent  for  said  lode,  naming  and  calling  the 
said  lode  in  said  plat  and  application  the  Bear  Lode  situate 
in   r •/•;/,/,/,    r,-r,  A-   mining  district.  County   of  Teller,  State  of 
Colorado :  said  survey  and  plat  being  designated  as  mineral 
survey    No.    H.:iH».    and   consisting   of   1500   linear   feet,   to- 
gether with  surface  ground  300  feet  in  width  ;  and  the  said 
Wolcolt  did,  at  the  same  time  and  place,  give  notice 


470  ADVERSE  CLAIM. 

that   he   would    apply   for    a   United    States   patent   for   the 
above  described  lode  and  premises  in  substance  as  follows  : 

[Here  attach  copy  of  neicspaper  publication.] 

AND  WHEREAS,  The  first  publication  of  said  notice  of 
said  application  appeared  in  the  Cripple  Creek  Star,  a 
weekly  newspaper  published  at  Cripple  Creek,  in  said  County 
and  State  on  the  18th  day  of  December,  A.  D.  1007. 

Now  THEREFORE,  I,  Edward  F.  Bishop,  a  citizen  of 
the  United  States  over  the  age  of  twenty-one  years,  residing 
in  and  my  postofflce  address  being  I><  >n •>>-.  in  the  County  <>t 
Denver,  in  said  State,  do,  on  this  third  day  <>f  / '<  hn«tr>/. 
A.  D.  1908,  enter  this,  my  protest,  and  adverse  claim  against 
the  issuing  of  a  patent  to  the  said  C.  A.  Wolcott,  for  his 
pretended  claim  upon  the  so-called  Bear  L»»l>  .  as  s.  i  forth 
in  his  said  plat  and  field  notes  as  aforesaid,  for  the  follow 
ing  reasons,  to  wit : 

1.  The  surface  ground  and  veins  or  lodes  contained 
therein  as  set  forth  and  described  in  the  plat  and  field  notes 
of  the  said  C.  A.  Wolcott,  or  a  great  portion  thereof,  are  not 
the  property  of  the  said  applicant,  neither  is  he  entitled  to 
hold  the  same  under  or  by  virtue*  of  the  local  laws,  rules 
and  customs  of  miners  in  said  mining  district.  the  la\\ 
the  State  of  Colorado,  or  the  Statutes  of  the  Unit.-d  states 
relating  to  mining  claims. 

I'.  Because  a  great  portion  of  the  premises  described 
in  said  plat  and  notice  of  said  applicant.  :md  claimed  i.y 
him  as  the  so-called  Bear  Lode,  is  claimed  adversely,  and  is 
owned  by  this  protestant,  and  is  in  fact  a  portion  of  the 
premises  claimed  and  owned  by  this  protestant  as  the 
Elephant  Lode,  as  will  appear  by  reference  to  an  abstract 
of  title  herewith  filed,  made  a  part  of  this  protest  and 
marked  Exhibit  A. 

3.  Because  this  protestant   (and  his  grantors)    have 
held,  occupied  and  possessed  a  great  portion  of  the  premises 
set  forth  and  described  by  the  said  C.  A.   it  <>/<  "//  in  his  plat 
and  notice  of  the  so-called  Bear  Lode,  long  prior  to  the  pre- 
tended discovery   and   location   of  the  so-called    itt-nr   Lode; 
such  occupation  and  possession  of  this  protestant    (and  his 
grantors)    having  been  under  and   by  virtue   of  a  full    com- 
pliance with  the  local  laws,  rules  and  customs  of  said  min- 
ing district,  and  the  laws  of  said   State,  and  of  the  United 
States,    pertaining   to   mineral    lands. 

4.  Because  this  protestant    (and  his  grantors)    have 
held,  occupied  and  possessed  all  that  portion  of  the  so  called 
Bear  Lode,  as  represented  on  the  plat  of  a  survey  made  by 
Thomas    L.    Darby,    United    States    mineral    surveyor,    and 
colored  red,  said  plat   of   said   survey  being   herewith    filed, 
marked   Exhibit   B,    and   made   a   part   of   this   protest,   and 
have  held,   occupied   and   possessed   the  same   long  prior   to 
the  pretended  discovery   and   location  of  the  so-called   Bear 
Lode.      And   this   protestant    is   the   original   discoverer   and 
locator  of  said  Elephant  Lode    (or  is  a  bona  fide  purchaser 
for   a  valuable   consideration,   from   or   through   the  original 
discoverer   and    locator   of   said    F.lcphunt    Lode,    by   convey- 
ances),  as   shown   on  said  abstract.      Nr*    Jtuh    Bl. 


ADVERSE  CLAIM  171 

fcUM  ;i   valid  discovery.   location   and   record  of 

hunt    Lode    was    made    by    this    protestant    (or    his 

gTftllton),    in    strict    compliance   w'ith    saia   local    laws,    rules 

and    customs,   and    the    laws   of  .the   State   of   Colorado   and 

of   thf    rutted   States,   and   while  the   same   was   vat-ant    min 

eral  land  of  the  United  States  open  to  occupation  ions  prior 

to  any  pretended  discovery  or  location  thereof  !>y  said  c.    \. 

"tt     (or    his    grantors)    and    said    i:i<i>fm>it    l.ode    hath 

been  occupied  and  possessed  as  aforesaid.  »-ver  since  its  dis 

vy    as   aforesaid.    l»y    this  protista  nt     "and    his    i;rantors), 

under   and    l«y    virtue   of   such    .!  location    nml    r- 

6.     Because  the  discovery  shaft  of  the  so-called 

I.  .H|.-  was  not   of  the  legal  depth  of  ten  feet  from   the  lowest 

part    of    the    rim   at   the   surfa<  lired    by    law    at    the 

of   the    pretended    record   of   the   same,   and   has   never 

I.een    vjn,  -e   sunk    to   that    depth.      7.   etc..    s.    . 

Wi  i  This    pf'testant    enters    this    his    protest 

and  aim    against    the   issuance   of    a    patent    to   the 

-:iid   '      .1      \\'>,i<-',tt   for   his   claim   upon   the   so-called    />'<</> 
Lode. 

ED.  F. 


STATE  OF  COLORADO,  County  of    /.//<;:  ss. 

On  this  3d  day  of  /  '••  -fore  me.  the 

subscriber,  a   Notary   1'uMic   in   and    for  said   county,   person- 

•  he  above  named   /:»/!»•//  n/  /'.   /;-\//o/>.  who  heim; 

duly     sworn,     saiih     that     he     is     the     adverse    claimant 

named    in    the   foregoing    protest   and.  adverse    claim    a 

rihed  hy   him.     Tli.it    be  lias  read  the  same  and  knows 
the  Meroof  :    i  Hat    the    same    is    true    in    suhs 

and    in    fact;   and   that    the   said   adverse  claim   Is   made   in 
good  faith  and  to  protect  his  better  and  prior  title. 

' 


s  worn   and  subscribed  before  me,   this  3d  day  or 

/.    A.    I»     l'.)Q8. 

/  •    B 
[SEAL.]  y    Public. 

To  the  above  reasons  others  may  be  added  where 
specific  facts  are  known  going  to  the  invalidity  of 
the  claim  sought  to  be  patented,  but  in  every  case 
allege  that  the  claims  conflict  and  that  the  adverse 
claimant  is  owner  of  the  conflicting  area  and  veins, 
as  in  paragraph  No.  2  of  the  above  form.  The  first 
five  paragraphs  constitute  a  good  statement  of  an 
adverse  right,  according  to  the  various  land  office 
rulings  and  others  are  added  only  as  precautionary. 

Exhibit  "A"  Is  an  Abstract  of  Title  certified  as 
in  form  "N"  and  should  contain  a  copy  of  the  Lo- 
cation Certificate.  But  failure  to  file  the  abstract 


472  ADVERSE  CLAIM. 

within  the  period  of  publication  (15  L.  D.  45)  as 
well  as  failure  to  furnish  the  certified  copy,  have 
been  held  not  fatal.— 1J,  L.  0.  237. 

Exhibit  "B"  Is  a  Plat  made  by  a  U.  S.  mineral 
surveyor,  showing  the  interference  of  the  two  claims 
certified  as  follows: 

I  hereby  certify  that  the  above  diagram  correctly 
shows  the  Elephant  Lode  in  its  entirety,  its  relative  situa- 
tion or  position  to  the  Bear  Lode  and  the  extent  of  the 
conflict  claimed  to  exist  between  said  Bear  Lode  and  said 
Elephant  Lode  as  actually  surveyed  by  me. 

Thomas  L.  Darby, 
U.  S.  Mineral  Surv<-\"i 

When  it  is  impossible  to  procure  an  actual  sur- 
vey, as  of  a  snow-bound  claim,  an  adverse  claim 
showing  the  nature,  extent  and  boundaries  of  the 
conflict,  stating  the  reasons  why  the  claim  could  not 
be  reached  for  survey,  will  be  sufficient. — 1  L.  D. 
592;  Rev.  Ed.  582;  Hoffman  v.  Beecher,  81  P.  92. 
The  plat  need  not  be  made  by  a  U.  S.  surveyor. — 
fj  L.  D.  358;  29  Id.  460;  Anchor  v.  Howe,  50  F.  366. 

No  plat  required  where  claimant  and  adverse 
claimant  hold  by  legal  subdivisions. — Rule  82. 

Improvements. 

The  amount,  of  improvements  on  the  ad  versing 
claim  is  immaterial,  and  though  formerly  required, 
need  not,  under  the  present  rules,  be  shown,  or  their 
value  stated.— Rule  82. 

Separate  Adverse  Claims. 

Where  there  are  several  Applications  to  be  ad 
versed  by  a  single  lode,  a  separate  Adverse  Claim 
with  its  Plat  and  Abstract  must  be  filed  in  each 
case.  Where  the  adverse  claimant  has  several  lodes 
with  which  he  intends  to  adverse  a  single  applica- 
tion, the  practice  is  to  combine  them  in  a  single  Ad- 
verse Claim. 


ADVERSE  CLAIM.  473 

Where  and  by  Whom  Verified. 

An  adverse  claim  is  usually  verified  by  the  ad- 
verse claimant  or  one  of  the  adverse  claimants  and 
within  the  land  district. 

But  by  act  of  April  26,  1882  (post  p.  512),  it  may 
be  verified  by  the  adverse  claimant  beyond  the  land 
district,  or  by  an  agent  or  attorney  in  fact  cognizant 
of  the  facts  stated,  who  must  swear  to  his  agency 
and  furnish  proof  thereof. — Rules  78,  ^9.  Such  agent 
must  make  his  verification  in  the  land  district. — 
Rule  80;  84  L.  D.  814.  A  corporation  verifies  either 
by  its  executive  officer  (president)  or  its  agent  there- 
to authorized.  And  if  the  adverse  claimant  is  a  non- 
resident or  absent  from  the  district  and  verifies  it 
personally  he  may  make  such  verification  wherever 
he  may  be,  before  the  clerk  of  any  court  of  record  or 
a  notary  public,  anywhere  within  the  United  States. 

In  cases  of  emergency  it  is  a  legitimate  expe- 
dient to  have  the  intending  adverse  claimant  convey 
to  a  third  party  within  the  district,  who  then  makes 
and  verifies  the  adverse  claim  precisely  as  if  he 
were  the  real,  as  he  becomes  in  fact  the  legal,  owner 
of  the  adversing  claim.  But  since  the  Act  allowing 
verification  by  the  adverse  claimant  beyond  the  dis- 
trict, or  the  filing  by  an  agent,  this  course  need  sel- 
dom be  resorted  to. 

Form  of  Adverse  and  Verification  by  Agent. 

Proceed  as  in  form  "HH"  to  the  last  paragraph 
and  insert: 

Wherefore  this  protestant,  by  Charles  T.  Limberg,  his 
duly  authorized  agent  and  attorney  in  fact,  who  Is  person- 
ally cognizant  of  the  facts  herein  stated,  enters  this  his 
protest  and  adverse  claim  against  the  issuance  of  a  patent 
to  the  said  C.  A.  Wolcott  for  bis  claim  upon  the  so-called 
Bear  Lode. 

EDWARD  F.  BISHOP, 
By   Charles  T.   Limberg, 
His  agent  and  attorney  in  fact. 

I-E  OF  COLORADO,  County  of  Teller:  ss. 

On  this  third  day  of  February ,  A.  D.  1908,  before  me, 
the  subscriber,  a  Notary  Public  in  and  for  said  county,  per- 
sonally appeared  the  above  named  Charles  T.  Limberg,  who 


474  ADVERSE  CLAIM. 

being  first  duly  sworn,  saith  that  he  is  the  duly  authorized 
agent  and  attorney  in  fact  of  the  above  named  Edward  F. 
Bishop,  adverse  claimant  named  in  the  foregoing  protest 
and  adverse  claim  above  subscribed  by  affiant  as  will  further 
appear  by  the  copy  of  his  power  of  attorney  hereto  attached 
marked  Exhibit  C  ;  that  affiant  has  i'ead  the  foregoing  pro- 
test and  adverse  claim,  and  is  cognizant  of  the  facts  therein 
stated,  and  that  the  same  Is  true  in  substance  and  in  fact, 
and  is  made  in  good  faith  to  protect  the  prior  and  better 
title  of  his  said  principal. 

CHARLES  T.   LIMBERG. 

Sworn    and    sul. scribed    before    me    this    tfiinl    day    ef 
/'</»•//</,//,  A.   I'. 

/:.  //.  at  • 

[SEAL.]  Notary    Public. 

By  Co-Owner. 

A  single  co-owner  may  make  and  verify  the  ad 
verse  claim  "on  behalf  of  himself  and  his  co-owners" 
which  phrase  should,  in  the  form  "HH,"  follow  the 
name  of  the  protestant  whenever  it  occurs  or  where 
the  context  requires  it,  when  an  adverse  is  so  made. 

And  it  is  held  that  one  co-owner  may  adverse 
although  another  co-owner  refuse  to  join  him. 

And  one  co-owner  cannot  withdraw  his  adverse 
so  as  to  prejudice  another  who  has  joined  with  him. 

Against  Co-Tenant. 

Where  one  or  more  co-tenants  apply  for  patent, 
omitting  the  name  of  one  or  more  of  their  associates, 
the  title  received  enures  to  the  benefit  of  all  the  co- 
owners. — Turner  v.  Saicyer,  150  U.  8.  518;  Brundy 
v.  May  field,  38  P.  1067:  Malaby  v.  Rice,  21  M.  R.  29. 
Nevertheless,  the  legal  title  passes  by  the  patent,  to 
the  patentees  and  to  them  only;  and  while  the  ousted 
co-tenant  will,  in  equity,  upon  proper  proceedings  be 
declared  a  beneficiary  under  the  patent,  yet  if  he  is 
aware  of  the  proceeding  in  time  and  has  opportunity, 
undoubtedly  the  better  course  is  to  adverse.  By 
Rule  53  the  Land  Office  regards  a  co-tenant  in  such 
case  as  a  protestant  rather  than  an  adverse  claimant 
and  does  not  require  suit  in  support  of  the  protest; 
but  if  he  elects  to  bring  suit  the  application  will  be 
stayed  to  await  its  determination. — 25  L.  D.  495;  26 
Id.  220.  On  protest  filed  the  Department  will  give 


ADVERSE  CI*AIM.  475 

coowners  opportunity  to  litigate  in  Court  the  dis- 
puted title.— ./'/  /'/.  364.  The  distinction  here  at- 
tempted is  refined.  There  is  nothing  in  the  Turner 
case  construed  in  25  L.  D.  ./.''. -7  to  intimate  that  a  co- 
tenant  may  not,  if  he  wish,  file  his  adverse  claim. 

The  provisions  01  were  intended  only  to 

apply  to  adverse  claims  arising  out  of  conflicting 
locations,  and  not  to  controversies  between  co-owners. 
But  if  one  co-tenant  be  ousted  he  has  the  common  law 
rii;ht  to  sue.  and  it  does  not  weaken  his  case  that  he 
has  filed  an  adverse  claim  and  brings  suit  in  support 
01  it.— Davidson  v.  Eraser  (Colo.),  tf.j  /' 

Time  to  File. 

The  period  is  stridly  limited  to  sixty  days  ex- 
cluding the  first  day.— 13  L.  D.  718;  28  Id.  22}. 

To  instance:  where  first  publication  was  on  Oc- 
tober 19  they  excluded  the  first  day  and  count — 

October  12  days; 

November  30  days; 

December   18  da\ 

total  60  days,  and  made  December  18th,  the  last  dav 
on  which  an  adverse  could  be  filed. — 13  L.  D.  286;  16 
L.  D.  l«l. 

Time  Cannot  be  Extended. 

No  adverse  claim  can  be  received  after  the  ex- 
piration of  the  statutory  period,  and  the  Department 
is  without  authority  to  enlarge  the  time  for  filing. — 

So  also  the  30  days  time  allowed  for  commencing 
suit  cannot  be  extended;  the  law  limiting  the  period 
is  mandatory;  if  the  papers  intended  to  commence 
suit  are  delayed  in  the  mail,  or  action  is  delayed 
through  the  agency  of  an  attorney  corrupted,  the 
Land  Office  can  afford  no  relief. — 2  L.  D.  707 ;  Sickel, 
190,  .UO.  But  the  Department  will  not  review  a  ju- 
dicial determination  that  a  suit  was  initiated  within 
the  statutory  period.—?.?  L.  D. 


476  ADVERSE  CLAIM. 

Republication. 

When  for  any  cause  a  republication  is  required, 
the  adverse  claim  must  be  re-filed  during  the  second 
period  of  advertising;  but  no  additional  filing  fee  is 
charged. — Sickel,  813. 

Where  there  has  been  a  material  misdescription 
in  the  published  notice  a  republication  (and  in  this 
case  a  resurvey)  will  be  ordered,  although  applicant 
has  already  made  final  entry. — 11  L.  D.  565. 

Sunday — Holidays. 

It  has  been  ruled  that  an  adverse  may  be  filed 
on  Sunday,  when  the  last  day  falls  on  Sunday;  and 
out  of  office  hours  on  any  day;  but  that  the  receiv- 
ing and  filing  out  of  office  hours,  or  on  Sunday,  is 
not  compulsory  upon  the  officers. — 6  L.  0.  13;  2.}  L. 
D.  546.  That  if  the  60th  day  fall  on  Sunday  the 
adverse  is  too  late  if  filed  on  the  succeeding  Monday. 
— 34  L.  D.  568,  overruling  contrary  holdings  in  8 
L.  D.  430  and  13  L.  D.  718  where  the  last  day  fell  on 
a  legal  holiday. 

Amendment. 

An  adverse  claim  cannot  be  withdrawn  for 
amendment;  but  if  a  material  defect  should  be  dis- 
covered, there  would  be  nothing  to  prevent  the  filing 
of  a  second  adverse,  complete  in  itself,  provided  the 
60  days  had  not  expired.— Copp,  121,  155,  227;  Sickel, 
208. 

An  Appeal  Lies  from  the  rejection  of  an  adverse 
claim. — 13  L.  D.  7/8.  In  an  instance  where  an  adverse 
had  been  filed  which  was  dismissed  as  defective  but 
the  adverse  claimant  brought  his  suit  and  filed  his 
certificate,  the  land  office  declined  to  allow  further 
action  on  the  application  until  the  decision  of  the 
suit.— 2  L.  D.  706. 

If  the  adverse  claim  is  dismissed  by  the  local 
land  office  the  adverse  claimant  must  nevertheless 
bring  suit  within  the  30  days  or  his  rights  will  be 
gone  although  he  sustain  his  contention  on  appeal 
to  Washington  from  the  dismissal  of  his  adverse. 


ADVERSE  CLAIM.  477 

This  manifestly  wrong  and  unjust  ruling  was  the 
final  result  of  all  possible  holdings  on  the  point,  in 
the  various  branches  of  the  Land  Department,  in 
the  case  of  a  lode  called  the  "ATo  Mistake." — 22  L.  D. 
Similar  ruling  where  the  adverse  was  rejected. 
—35  L.  D.  304. 

What  Claims  Should  Adverse. 

Of  course  lode  must  adverse  lode  and  mill  site 
must  adverse  mill  site  and  placer  must  adverse  placer 
or  all  prepense  of  prior  title  will  cease  to  be  of  avail. 
— See  p.  1S8. 

A  placer  must  adverse  a  lode  application;  other- 
wise the  lode  will  take  the  full  area.  A  lode  claim 
need  not  necessarily  adverse  a  placer  because  it 
may  rely  on  the  statutory  exclusion  of  known  lodes, 
but  it  is  better  to  file  an  adverse  as  the  best  means 
of  protecting  its  title.— 26  L.  D.  627. 

The  Department  held  in  1  L.  D.  566  (Rev.  Ed. 
555)  that  a  mill  site  must  adverse  a  lode  location, 
but  to  the  contrary  in  25  L.  D.  7.  And  in  still  later 
cases  (29  L.  D.  522;  35  Id.  495)  it  holds  that  an  ad- 
verse is  not  allowed  in  any  instance  between  mineral 
and  non-mineral  claimants;  that  a  suit  supporting 
it  will  not  stay  proceedings  on  an  application  for  a 
mineral  patent;  that  the  question  of  known  mineral 
value  must  be  decided  by  the  Department  and  that  a 
decision  of  that  point  by  a  court  does  not  conclude 
tli*'  Department.  Mr.  Lindley,  §§  777,  724,  appar- 
ently takes  the  same  position. 

But  there  have  been  frequent  instances  where 
such  adverses  have  been  filed  and  sustained. — Shafer 
v.  Constans,  S  Mont.,  S69;  Durgan  v.  Redding,  103  F. 
914;  Cleary  v.  Skifflch,  28  Colo.  362,  21  M.  R.  284.  The 
mineral  character  of  the  land  is  by  no  means  the 
only  issue  which  may  be  involved  in  such  suits  and 
the  procedure  to  obtain  a  mill  site  patent  being 
authorized  in  the  same  act  which  prescribes  the  pro- 
cedure for  patenting  mining  claims  proper,  we  do  not 
perceive  strength  in  the  contention  that  they  can- 
not adverse  each  other.  Even  lot  owners  have  been 
allowed  to  adverse.— Banner  v.  Meikle,  "82  F.  697; 


478  ADVERSE  CLA  I  M . 

Young  v.  Goldsteen,  97  F.  303.  But  the  later  case 
of  Wright  v.  Hartville,  81  P.  6/f9  takes  the  same 
view  as  the  Land  Office  on  the  whole  question  of  ad- 
verses  between  mineral  and  non-mineral  claimants. 

There  is  an  evident  distinction  between  the  case 
of  the  lot  owner  and  the  mill  site  owner  more  fa- 
vorable to  the  right  of  the  mill  site  owner  to  adverse. 

Under  this  unsatisfactory  status  of  the  authori- 
ties it  is  advisable  to  file  both  adverse  and  protest,  as 
there  is  no  certainty  that  the  Land  Office  will  main- 
tain its  present  position  as  to  the  right  of  a.  mill  site 
to  adverse  a  mining  application  and  vice  versa. 

Miscellaneous  Hillings. 

An  adverse  claim  substantially  defective  may  be 
rejected.— 3  L.  0.  18;  9  L.  0.  5.  But  if  it  show  the 
nature,  boundaries  and  extent  of  the  claim,  the  Land 
Office  will  accept  it  even  though  it  do  not  meet  all  the 
requirements  of  the  regulations. — 27  L.  D.  «T 

The  Land  Office  is  not  bound  to  receive  an  ad- 
verse claim  when  the  filing  fee  is  not  paid  or  ten- 
dered.— 29  L.  D.  413. 

Where  there  is  no  surface  conflict  an  adverse  filed 
to  anticipate  conflict  expected  on  the  dip,  will  not 
be  received.— 6  L.  D.  318;  29  Id.  662;  Champion  Co. 
v.  Wyoming  Co.  16  M.  R.  l'i~>. 

An  adverse  based  on  a  claim  located  after  the 
publication  began  not  containing  allegations  deny- 
ing the  validity  of  the  prior  claim  adversed,  will  be 
rejected.— 7  L.  0.  50;  Contra,  2  L.  D.  699. 

Suit  in  Support  of  Adverse. 

After    the    adverse    claim    is    fried,    the    adverse 
claimant   must   bring   suit   for   the   premises   in   dis- 
pute, within  30  days,  under  the  terms  of  R.  8.  §  t 
See  p.  Jj69. 

If  his  suit  is  not  brought  within  the  thirty  days 
the  adverse  claimant  has  no  standing  in  the  Land 
Office  except  as  a  mere  prctestant;  and  the  applicant 
may  proceed  to  enter,  notwithstanding  the  adverse. 
—14  L.  D.  180;  35  Id.  550. 


ADVERSE  CLAIM  479 

It  has  been  held  that  failure  to  bring  suit 
within  the  30-day  period  must  be  specially  pleaded 
and  cannot  be  availed  of  for  the  first  time  on 
e  Co.  v.  Marks,  60  P.  938. 

A  suit  in  Nevada  is  commenced  when  complaint 
is  filed  and  summons  issued.  The  adverse  claimant 
filed  his  complaint  within  the  30  days,  but  summons 
did  not  issue  or  at  least  was  not  placed  in  the  Sher- 
iff's hands  until  sometime  thereafter.  But  the  de- 
fendant entered  a  general  appearance  and  filed  a  de- 
murrer which  was  held  a  waiver  of  any  right  to  ob- 
ject to  the  failure  to  issue  summons. — Harris  v. 

>ia  M.  Co.  92  P.   /. 

The  Proper  Court  is  usually  the  District  Court  of 
the  County  where  the  mine  is  situate,  except  in 
those  cases  where  the  facts  of  value  and  citizenship 

IK  h  that  the  U:  S.  Circuit  Court  may  have  juris 
diction. 

It   has  been  authoritatively  held  that  an  adverse 

i  suit  presents  no  Federal  question  and  that  the 
U.  S.  Courts  have  no  jurhdi«-M..n  on  that  ground.  - 
lilti.-L-i.nrn  v.  Portland  Co.  115  U.  8.  571;  Mt.  View 
Co.  v.  McFadden,  180  U.  8.  533. 

Even  when  the  courts  of  the  United  States  have 
undoubted  jurisdiction  the  State  Court  is  not  ousted, 
but  the  suit  may  be  commenced  in  the  State  Court, 
subject  to  defendant's  right  of  removal. 

Proof  of  Commencing  Suit. 

After  the  complaint  is  filed  a  certificate  should 
he  made  and  signed  by  the  clerk  of  the  court  and 
filed  in  the  local  Land  Office  in  substance  as  follows: 

JJ.      CERTIFICATE  OF   Sill. 

COLORADO,  County  of  Teller:  ss. 

I.    l     u.   0nw*.  rierk  of  the  District  Court  of  snid 
;ity,  do  hereby  certify  that  Ed.  F.  Bishop  did  on  the  10th 
day    nf    February,    \.    I».    1908,   commence  an   action   in   said 
Court   against    C/.     l.    \\olcott,   to   sustain   an   adverse   claim 
ust    the    Hear   Lode,    survey    lot    No.    11,310,    situate    in 
Mineral  distrfct.  Teller  County,  State  of  Colo- 
rado,   and    to    recover   possession   of   all   that   parcel    of   the 


480  ADVERSE  CLAIM. 

Elephant  Lode,  embraced  within  the  lines  of  said  survey  lot, 
and  that  said  action  is  now  pending  and  undetermined  in 
said  Court. 

Attest  my  hand  and  the  seal  of  said  Court  at  CrippJc 
Creek  this  10th  day  of  February,  A.  D.  1908. 

[SEAL  OF   COURT.]  A.    W.    GRANT. 

Clerk. 

But  the  failure  to  file  this  certificate  is  not  fatal 
under  Rule  88,  which  requires  the  applicant  to  file 
certificate  showing  affirmatively  that  no  suit  has  been 
brought. 

When  a  Suit  Is  Already  Pending  between  the  same 
parties  for  the  recovery  of  the  ground  in  conflict  at 
the  time  of  the  filing  of  the  adverse,  it  has  been  ruled 
that  such  suit  may  stand  as  the  suit  to  support  the 
adverse  and  no  new  suit  need  be  brought. — 8  L.  D. 
.'/37;  29  Id.  194.  In  such  case  the  plaintiff  cannot  dis- 
miss so  as  to  leave  the  adverse  without  suit  support- 
ing it. — Axiom  Co.  v.  Little,  61  N.  W.  441.  If  no  ad- 
verse is  filed,  a  pending  suit  will  not  stay  patent  pro- 
ceedings.— 83  L.  D.  187. 

The  Suit  in  Support  of  an  Adverse  is  ordinarily 
at  law  by  ejectment  and  such  suit  is  certainly  con- 
templated in  the  statute  above  printed  by  the  use 
of  the  clause  "the  jury  shall  so  find."  Such  is  un- 
doubtedly the  form  of  action  where  the  plaintiff,  as 
is  usually  the  case,  is  out  of  possession.  But  where 
the  plaintiff  is  already  in  possession  he  may  proceed 
in  equity  by  bill  to  quiet  title.  This  view  making  the 
form  of  action  depend  upon  whether  plaintiff  is  in  or 
out  of  possession  is  that  which  is  clearly  expressed 
by  the  final  authority  in  such  cases. — Perego  v. 
Dodge,  163  U.  8.  165. 

There  had  been  decisions  holding  in  general 
terms  that  ejectment  was  the  proper  remedy: 
Becker  v.  Pugh,  15  M.  R.  304;  Manning  v.  Strehlow, 
11  Colo.  451;  Burke  v.  McDonald,  13  P.  851;  and 
others  asserting  it  to  be  an  equitable  action:  Doe  v. 
Waterloo  Co.  43  F.  219;  Shoshone  Co.  v.  Rutter, 
87  F.  801;  Providence  Co.  v.  Burke,  57  P.  641;  Me- 


ADVERSE  CLAIM.  481 

ten  v.  Mt.  View  Co.  97  F.  670;  Butte  Co.  v. 
Marker,  89  P.  30 >;  but  the  Perego  case  states  the  ob- 
vious test  of  possession  as  determining  the  form  of 
action. 

If  neither  party  is  in  actual  exclusive  possession 
or  if  the  facts  render  the  point  doubtful  the  claim- 
ant can  treat  the  application  as  an  ouster  and  pro- 
ceed at  law. — Becker  r.  Pugh,  15  M.  R.  304.  See  p. 
.;,.-,. 

In   agreement    with    the   Perego    case   and    with 

ihese  views  are  the  cases  of  Durgan  v.  Redding,  108 

/      914;  Johnson   v.   Munday.   104  F>  594;   Young  v. 

/  .  303;  Book   r.  Justice  Co.  58  F.  827. 

The  cases  whk-h  hold  that  it  is  an  equitable 
action  lose  siirht  of  tl;»»  fact  that  the  adverse  and  th« 
suit  are  independent  proceedings.  The  adverse  be- 
ing filed  in  the  Land  Office,  the  Government,  the 
Trustee  of  the  title — directs  the  contestants  to  ad- 
judicate their  cor.tn>\<rsy  in  a  "court  of  competent 
jurisdiction."  It  then  allows  the  winning  party  to 
report  his  obedience  to  the  direction, — his  success  in 
the  suit — and  the  patent  application  resumes  its 
progress.  There  is  no  connection  between  the  two 
procedures  such  as  10  bring  the  cause  within  any 
one  of  the  limited  schedule  of  the  subjects  of  equit- 
able jurisdiction.  But  if  at  the  proper  time  for 
tiringing  suit  the  plaintiff  be  in  possession  he  has 
the  right  to  bring  suit  in  equity  to  quiet  title:  the 
same  suit  which  he  could  maintain  if  there  were  no 
controversy  pending  in  the  Land  Office. 

Parties. 

The  plaintiff  is,  of  course,  the  adverse  claimant 
and  the  defendant  the  applicant,  but  where  the  con- 
testants after  adverse  filed  conveyed  to  one  of  their 
number  it  has  been  held  that  the  suit  may  be  brought 
in  his  name  alone.— Willitt  v.  Baker,  133  F.  937. 

The  applicant  should  be  made  a  defendant,  al- 
though he  has  sold  his  interest  before  suit  brought. — 
Blackburn  v.  Portland  Co.  20  M.  R.  358;  175  U.  8.  571. 

16 


482  ADVERSF>  CLAIM. 

The  court  recognizes  the  relation  of  the  suit  to 
the  land  office  proceedings  and  looks  to  an  adjudi- 
cation of  title  not  to  a  technical  question  of  proper 
parties.— Wolverton  v.  Nichols,  15  M.  R.  309;  119  U. 

8.  485. 

Complaint. 

The  complaint  should,  of  course,  describe  the  area 
in  conflict  following  the  lines  of  plat  B.  in  the  ad- 
verse. If  it  declare  for  the  whole  claim  it  would 
necessitate  a  disclaimer  as  to  parcel  of  the  premises. 
But  to  the  holding  that  the  complaint  is  so  inti- 
mately associated  with  the  adverse  claim  that  a  fail- 
ure to  describe  the  exact  area  in  conflict  would  render 
it  fatally  defective  we  cannot  assent,  though  such 
has  been  the  ruling  in  two  "cases. — Cronin  v.  Bear 
Creek  Co.  32  P.  204;  Smith  v.  Imperial  Co.  89  P. 
510. 

KK.       FORM    OF    COMPLAINT. 

STATK  «>i    ('MLOKADO,  County  of  Teller:  ss. 

In  the  District  Court  of  said  Cofanty. 

/•;<///•  r/<W   /•'.   Bishop,  Plaintiff, 

9. 
<'.    \ .    \\'nl<-ott,  Defendant. 

The   plaintiff  complains   and  alleges : 

1.  That  on  to  wit:   the  first  day  of  Jninuirii.   A     I» 
/>.•'?.  and  ever  since  hithrrio  he  was,  and  is,  the  owner  and 
in    actual    occupation   of    the    HhjtJinnt    Lode    Mining    Claim, 
l.'.no  feet  in  length   l.y   ::<><>  tv.-t   in   width,  situate  in  Crii>i>l> 
Creek   Mining   District,   County   and   State   aforesaid. 

•_'.  That  the  plaintiff  is,  and  at  all  times  mentioned 
in  this  complaint  hath  been,  a  citizen  of  the  United  States, 
(or) 

2.  That   at   and   before  the  date   last   aforesaid   the 
plaintiff  had  declared   his   intention   to  become  a  citizen  of 
the   United    States    before   a    court   of   record,    to   wit :    The 
Court  of  Common   Pleas   of  the  County  of  Allegheny,   Com- 
monwealth of  Pennsylvania. 

3.  That  he  has  and  claims  the  legal  right  to  occupy 
and  possess  said  premises  and  is  entitled  to  the  possession 
thereof  by  virtue  of  full  compliance  with  the  local  laws  and 
rules    of   miners    in    said    mininir    district,    the    laws    of    the 
I'nited     States,    and    of    said    State    of    Colorado,    by    pre- 
emption   (and  purchase)    and  by  actual  prior  possession,   as 
:i    Lode  Mining  Claim,   located  on  the  public  domain  of  the 
United    States. — See   Code,   Sec.    286. 


ADVERSE  CLAIM.  483 

4.  That  on,  to  wit:  the  first  day  of  November,  A.  I  >. 
1907,  the  defendant  wrongfully  entered  upon  parcel  of  said 
claim,  to  wit  :  All  that  part  of  said  claim  which  is  inter- 
sected by  the  exterior  lines  of  Survey  Lot  No.  11,310,  known 
ode  Mining  Claim,  as  shown  by  pint  marked 
Exhibit  ••!•..••  tiled  <>n  the  third  day  of  February,  A.  D.  1908. 
in  the  land  office  of  the  United  States,  at  /';/<  >'/<>.  in  the  said 
State,  with  the  adverse  claim  of  the  plaintiff  against  the 
entry  of  said  survey  lot  for  patent,  such  ground  so  inter- 
sected being  described  as  follows:  i //*;•«  intt-rfi  n  n<  •»•  shnuhl 
/  tnmnilf<\  and  that  defendant  hath 

ever  since  hitherto  wrongfully  withheld  the  possession  of 
said  parcel  of  said  rhj>J\<;nt  \. <><!.•  Mining  claim  fnnn  the 
plaintiff  to  his  dama-.-  in  the  sum  of  one  hundred  dollars. 

."..  That  said  adverse  claim  was  tiled  in  said  Land 
Office  within  the  period  of  sixty  days  of  pul'lica t  i«m  of  the 
notice  <.f  application  for  patent  on  said  />'<<//  l«n|e  and  this 
suit  is  brought  before  the  expiration  of  the  period  of  thirty 
days  tiling  of  said  adverse  claim. 

That  this  suit  is  brought  in  support  of  said  ad- 
verse claim,  and  that  plaintiff  necessarily  disbursed,  ex- 
p.-ndrd  and  paid  .nit  the  sum  of  twenty  tiv.-  dollars  for  plats, 
abstracts  and  COplefl  ot  p::i"-rs  filed  in  said  Ian  1  oflice  with 
his  said  adverse  claim,  and  also  a  reasonable  Counsel  Fee, 
to  wit :  fifty  dollars,  for  the  expense  of  preparing  his  said 
adverse  claim. 

Wh.-refore  plaintiff  prays  judgment  against  the  de- 
fendant : 

1.  For   the   recorei  Cession  of  said   parcel   of 
said   Klijttmnt    l.odc    Mining   claim. 

2.  I  MI    of  one  hundred   dollars   dam. 

-urn    of    s»  v.-nty  tivi-    dollars    expended    in 
support  of  said  adv.  is.-   claim 

4.      For   costs    of   suit.  D.  P.   Ifnu-unl. 

Attorney  for  Plaintiff 

Add    verification    if    desired;    but    in    actions   of 
Miiont.  trespass,  etc..  the  practice  of  verifying  th»» 

pleading  ought  to  be  discouraged. 

The    above    form    was    expressly    approved    in 

/«  /.son  v.  McFall  (Colo.),  85  P.  638. 

Averment  of  Citizenship. 

It  is  the  practice  to  aver  the  citizenship  of  the 
parties  in  their  r<-s| »<•<•?  ive  pleadings.  The  forms 
above  given  contain  such  allegation,  and  if  issue 
is  taken  on  it  the  tact  must  be  proved. — Strick- 
/*•//  v.  Jim.  tit  P.  894.  See  Citations  p.  310. 

The  citizenship  of  the  parties  is  a  material  issue 
in  an  adverse  claim  suit. — Matlock  v.  Stone,  91  S. 
W.  553. 


484  ADVERSE  CLAIM. 

As  to  complaints  omitting  the  allegations  of 
paragraph  5  in  the  form  above,  see  pp.  310,  345. 

Costs. 

Paragraph  6  of  the  above  form  is  based  on  R.  S. 
Colo.  1061.  The  costs  in  such  section,  strictly  con- 
strued, could  not  be  made  to  include  more  than  the 
expense  of  abstract,  plat  and  attorney's  fee.  It  is 
customary  between  counsel  to  concede  without  proofs 
that  $75  has  been  paid  under  this  allegation. 

Complaint  Detailing  History  of  Location. 

There  is  another  style  of  complaint  which  sets 
forth  chronologically  ihe  fact  of  discovery,  of  sink- 
ing the  shaft,  its  depth,  and  what  it  disclosed;  the 
placing  of  the  location  stake,  the  marking  of  the 
claim,  and  the  record;  following  the  language  of  the 
statute  concerning  location,  etc.  But  many  claims 
are  sufficiently  valid  to  maintain  ejectment  without 
a  strict  location,  or  tho  defendant  may  be  in  position 
where  he  is  estopped  from  attacking  weak  points  in 
the  plaintiff's  case.  In  any  event  such  recitals  lead 
to  cumbersome  pleadings  and  to  immaterial  issues, 
and  are  not  the  ultimate  facts  required  to  be  stated 
in  code  pleading. 

General  allegations  of  title  are  sufficient. — 
Rough  v.  Simmons,  15  M.  R.  298;  65  Cal.  227.  But 
the  complaint  sustained  in  that  case  is  the  extreme 
of  loose  pleading. 

Relation  of  the  Suit  to  the  Application. 

It  has,  as  we  believe,  been  rightly  held  that  an 
ordinary  complaint  in  ejectment  making  no  refer- 
ence to  the  Land  Office  proceedings  will  support  the 
adverse  claim. — Deeney  v.  Mineral  Creek  Co.  67  P. 
724;  Altoona  Co.  v.  Integral  Co.  114  Cal.  100;  Upton 
v.  Santa  Rita  Co.  89  P.  275. 

The  suit  being  determined  and  certified  copy  of 
its  Judgment  Roll  being  filed  in  the  Land  Office  show- 
ing that  it  was  between  the  same  parties,  that  it 
determined  the  right  of  possession  to  the  same  prop- 


ADVERSE  CLAIM. 

erty  and  was  brought  at  a  date  found  to  be  within  30 
days  of  the  filing  of  the  adverse — what  more  is  neces- 
sary to  connect  the  two  proceedings  and  to  show  that 
the  suit  was  the  same  suit  intended  by  the  terms  of 
R.  S.  Sec.  2326  f 

But  departing  from  this  obviously  plain  view  of 
the  proceeding  the  courts  of  the  various  state's  have 
scattered  widely  on  the  point  as  to  whether  at  all 
or  to  what  extent  the  pleadings  should  recite  their 
relation  to  and  connection  with  the  defendant's  ap- 
plication and  the  plaintiff's  adverse.  The  various 
holdings  are  concisely  digested  in  2  Lindley,  §  754. 

The  forms  above  given  are  a  concession  to  the 
contention  that  the  proceedings  should  be  tied  to- 
gether by  formal  reference  to  the  Land  Office  filing 
and  fully  meet  the  requirements  of  those  courts 
which  hold  such  averments  essential. 

But  while  conceding  as  above  to  what  is  de- 
manded by  some  of  these  decisions,  and  conceding 
as  well  that  it  is  the  better  practice,  we  do  not  con- 
cede that  a  complaint  ought  to  be  held  bad  if  they 
were  all  omitted. 

In  Mattingly  v.  Lewisohn,  SS  P.  Ill,  Montana 
held  that  the  averment  of  the  filing  of  the  adverse 
and  bringing  of  the  suit  in  due  time  were  material 
averments.  This  ruling  was  reaffirmed  in  Thornton 
r.  Kaufman,  .vs  /*.  7.%'.  But  it  may  be  inferred  by 
implication  from  dates  in  the  complaint. — Helbert  v. 
Tatem,  85  P.  733. 

In  rronin  v.  Bear  Creek  Co.  <32  P.  204,  Idaho 
held  that  although  these  dates  were  conceded  by 
stipulation  their  absence  from  the  complaint  ren- 
dered it  so  defective  that  it  would  not  support  a 
judgment.  Thus  the  patent  justice  of  the  case  was 
sacrificed  to  support  a  technicality  in  Code  Pleading. 

But  these  decisions  are  against  the  current  of 

authority. — Pennsylvania  Co.  v.  Bales,  70  P.  444;  22 

M.   /  v.  Casey,  73  P.  1090;  19  Colo. 

App.    152;   Providence   Co.   v.   Marks    (Ariz.),    60   P. 

'juigley  v.  Oillett  (Cal.),  35  P.  1040. 

In  Arizona  it  has  been  held  that  the  suit  is 
"Neither  an  action  at  law  nor,  strictly  speaking,  one 


486  ADVERSE  CLAIM. 

in  equity:"  that  the  plaintiff  must  allege  and  prove 
and  practically  duplicate  all  that  is  required  in  the 
land  office:  and  a  complaint  was  held  defective  be- 
yond amendment  because  it  did  not  aver  "that  the 
ground  in  controversy  was  mineral  land  subject  to 
location."  —  Keppler  v.  Becker,  80  P.  834. 

We  cannot  see  value  received  to  any  party  to  the 
contest  nor  any  reason  in  practice  or  on  principle 
to  justify  these  refinements  in  pleading. 

Amendment  of  Complaint. 

Contrary  to  the  ruling  last  above  cited,  Deeney 
v.  Mineral  Creek  Co.  67  P.  "24  and  Woody  v.  Hinds, 
TV;  P.  /,  hold  that  the  complaint  may  be  amended 
after  the  30-day  period  has  expired. 

LL.       ANS\\  I  K. 

STATE  OP  COLORADO,  County  of  Teller:  ss. 

In  the  District  Court  of  said  County. 

B<to*rd   /'.  Bishop,  Plaintiff, 
v. 

C.  A.    ll'o/rof/.   Defendant. 

Defendant   answering  the  complaint  says: 
For   a   first   defense  : 

1.  He  denies  that  on  the  date  cnarged  in  complaint 
or   at   any    time   the   plaintiff  was   or   is   the   owner   or   \va> 
in  the  occupation,  actual  or  otherwise,  of  the  Klrphtmt  Lode 
Mining  Claim   described   in   said  complaint. 

2.  He    admits    (or    denies)     that    the    plaintiff    is    a 
riti/en   of   the   United   States. 

3.  Defendant  denies  that  plaintiff  has  or  claims  the 
legal   right  to  occupy   and  possess  said  premises  or  is  enti- 
tled to  the  possession  thereof,  and  denies  that  he  hath  com 

th 


plied  with  the  local  laws  or  rules  of  miners  in  said 
Oreek  Mining  iM'sirirt.  the  laws  of  the  United  States,  or 
of  said  State  of  Colorado,  in  the  pre-emption,  discovery,  or 
loration  of  said  so-called  Elephant  Lu<l««  Mining  claim. 

4.  Defendant  denies  that  at  the  time  charged  in  par- 
agraph four  of  complaint,  or  at  any  time,  the  defendant 
wrongfully  entered  upon  the  parcel  of  said  claim  descril>«'d 
in  said  paragraph  or  any  part  thereof,  or  that  he  hath  ever 
since,  hitherto,  or  at  any  time,  wrongfully  withhold  posses- 
sion of  said  premises  from  the  plaintiff  and  denies  that  the 
plaintiff  is  damaged  in  the  sum  of  $100  or  in  any  sum,  or 
at  all. 

a.  Defendant  admits  the  allegations  of  paragraphs 
five  and  six  of  complaint. 

For  a   second  defense,   defendant  says  : 


ADVERSK  CLAIM.  1x7 

1.  That  he  is  M  citizen  of  the  United  States,  and  that 
ever  MII, -I-,  to  wit  :  the  first  day  of  January,  1900,  he  was 
and  is  th*-  owner  and  in  actual  occupation  of  the  Ht-nr  Lode 
Mining  Claim.  1 : feel  in  length  l.y  :5iM)  feet  in  width,  sit- 
uate in  said  Cr//>/</»  <'r<<k  Mining  District,  County  and 
State  al'op 

That  h.«  has  and  claims  the  legal  right  to  occupy 
and  possess  said  /<»<//•  Lode  Mining  Claim,  and  is  entitled 
to  the  possession  thereof  by  virtue  of  full  compliance  with 
the  local  laws  and  rules  of  miners  in  said  mining  district, 
the  laws  of  the  I'ni  and  of  said  State  of  Colorado, 

i»y   pre-emption    (and  purchase)   and  by  actual  prior  p<> 
sion   as  a   lode   mining   claim    located   on    the   public   mineral 
domain    of    the    I'nitrd    States. 

3.  And  that  the  premises  sued  for  in  said  complaint 
are  parcel  of  said  />'«</>  I. ode  Mining  claim,  the  property  of 
this  defendant.  /*»,»•,//  r.  lt<iil,».  Jr., 

Attorney   for   Defendant. 

A  Replication  Must  Be  Filed  to  such  second  de- 
fense or  the  defendant  will  be  entitled  to  judgment. — 
Newman  v.  Newtun.  //  f.  684.  But  if  parties  go 
to  trial  on  the  merits,  defendant  will  be  assumed  to 
have  waived  this  right. — Quimby  v.  Boyd,  8  Colo.  194. 
And  in  Wyoming,  in  Iba  v.  Central  Ass'n,  40 
•/.  the  court  took  the  very  tenable 
position  that  the  second  defense  was  only  in  effect  a 
n  averse  of  the  complaint  and  did  not  require  any 
replication. 

Plea  of  Abandonment  and  Re-Location. 

In  Bryan  v.  McCaig,  10  Colo.  309;  15  P.  413,  the 
supreme  court  of  Colorado  held  that  an  issue  as  to 
annual  labor  was  made  by  general  traverse  of  plain- 
tiff's title  in  an  adverse  claim  suit.  And  to  like 
effect  in  Nevada,  Steel  v.  Gold  Co.  15  M.  R.  292;  18 
Nev.  80,  holds  that  under  the  general  allegation  each 
party  parades  the  validity  of  his  own  title  on  what- 
ever grounds  established. 

If  when  a  claim  is  abandoned  it  becomes,  as  it 
does,  a  part  of  the  public  domain:  (Migeon  v.  Mon- 
tana Co.  18  M.  It.  446)  Why  is  not  an  allegation,  that 
the  defendant  at  a  date  later  than  the  abandonment 
entered  on  the  public  domain  and  discovered  and  lo- 
cated his  claim,  a  sufficient  averment  of  entry  upon 
unoccupied  ground? 


488  ADVERSE  CLAIM. 

In  Morenhaut  v.  Wilson,  52  Gal.  263;  1  M.  R.  53, 
it  was  ruled  that  while  abandonment  could  be  proved 
under  the  general  issue,  forfeiture  must  be  specially 
pleaded.  The  distinction  seems  of  no  particular 
value,  for  abandonment  by  one  party  unless  followed 
by  the  entry  of  the  other  to  advance  the  abandon- 
ment to  forfeiture  cannot  amount  to  a  material  issue, 

Another  line  of  reasoning  is  that  forfeitures  are 
odious;  the  party  alleging  forfeiture  rmrst  prove  it 
strictly;  the  presumptions  are  all  against  it,  and  be- 
ing a  special  incident  not  necessarily  associated  with 
the  party's  title,  it  should  be  alleged  in  the  complaint 
or  answer;  that  is,  should  be  specially  pleaded. — 
Wulff  v.  Manuel  9  Mont.  286;  28  P.  728;  Mattingly 
v.  Lewisohn,  18  Mont.  508;  17  M.  R.  693. 

This  conflict  of  authority  is  referred  to  in  John- 
son v.  Young,  18  Colo.  629.  We  cannot  find  that  either 
Mr.  Lindley  or  Mr.  Snyder  in  their  valuable  text 
books  commit  themselves  on  this  point  and  we  are 
compelled  to  state  that  it  remains  an  open  question. 

Abandonment  is  wholly  immaterial  if  no  issue 
(directly  or  indirectly)  has  been  made  upon  it. — 
Mattingly  v.  Lewisohn,  supra;  Coleman  v.  Davis,  IS 
Colo.  98. 

And  a  party  who  makes  a  relocation  of  an 
abandoned  claim  as  such  can  not  attack  defects  in 
its  original  location  notice. — Yosemite  Co.  v.  Emer- 
son, 28  U.  8.  Sup.  Ct.  R.  196. 

In  a  plea  of  forfeiture  "labor"  and  "improve- 
ments" are  not  synonymous  terms  and  the  non-doing 
of  the  one  and  the  non-performance  of  the  other  must 
be  both  averred. — Power  v.  81a,  20  M.  R.  659;  24 
Mont.  243. 

Adverse  Against  Void  Claim,  Relocated. 

The  Quaking  Asp  being  a  prior  subsisting  claim 
the  Dog  Nest  was  located  over  it,  its  discovery  shaft 
within  the  lines  of  the  prior  claim  and  the  location 
therefore  void.  Afterwards  the  prior  claim  (as  was 
alleged)  failed  to  do  its  annual  labor  and  the  Dog 
Nest  filed  a  relocation  certificate,  applied  for  patent 


ADVERSE  CLAIM.  489 

and  was  adversed  by  the  Quaking  Asp.  Held:  That 
the  relocation  statute  was  for  the  benefit  of  defect- 
ive,  not  void,  locations  and  that  the  relocation  cer- 
tificate was  a  nullity.  Sullivan  v.  xinirp  (Colo.), 

The  opinion  everywhere  has  always  been  that  a 
relocation  perfected  the  original  location  if  invalid, 
or,  if  void,  the  incident  which  rendered  it  void  being 
at  the  time  of  relocation  gone,  it  operated  as  an  orig- 
inal location.  The  case  of  Strepey  v.  Stark,  7  Colo. 

so  decides  in  terras.  The  doctrine  that  a  reloca- 
tion could  not  cure  a  location  originally  void  is  abso- 
lutely novel  and  contrary  to  all  the  cases  which  have 
approached  the  point.  Beals  v.  Cone,  27  Colo.  tfS; 
20  M.  R.  591;  Tonopah  Co.  v.  Tonopah  Co.  125  F.  390. 

The  Verdict  should  show  that  the  winning  party 
is  entitled  to  possession  by  virtue  of  making  a  valid 
location  of  the  claim. — Burke  v.  McDonald,  S3  P. 
0  M.  H.  •>'•'>.  It  should  of  course  comply  with  all 
n laudatory  requirements  of  the  code  of  the  State 
where  tried.  But  as  it  has  been  very  rightly  held 
that  neither  party  is  required  in  the  adverse  suit  to 
\\  that  he  has  done  everything  entitling  to  patent 
(Doe  v.  Waterloo  Co.  10  F.  456),  and  the  National 
Supreme  Court  upholds  a  general  verdict  for  either 
party  (Bennett  v.  Harkrader,  158  U.  8.  441),  it  would 
seem  that  such  strictness  as  was  insisted  on  in  Me- 
(finnis  v.  Egbert,  15  M.  R.  S29,  and  Manning  v.  Streh- 
low,  11  Colo.  451,  ought  not  now  to  be  required.  A 
general  verdict  of  guilty  in  ejectment  is  sufficient. — 
Upton  v.  Santa  Rita  Co.  89  P.  275. 

MM.       VERDICT   FOR    PLA  I  \  1111 

flfa  the  jury,  find  the  issues  in  favor  of  the  plaintiff. 

:unl    that   he  Is   the   owner  by  discovery    (or   purchase)    and 

location  and  has  established  his  right  to  the  possession  and 

occupancy    of    the    premises    described    and    claimed    in    the 

complaint,  to  wit:   All   that  part  of  the  Elephant   L<><1<     ]///i 

in;/  Claim  covered  by  the  surrey  of  the  Bear   /.'»«/«•    Mining 

Lot  No.  11S10;  and   that  he,  the  plaintiff,   is 

:id  entitled    to   recover   said    premises    of   and 

from   the  defendant   by   virtue  of  full   compliance   with   the 

statutes  of  the  United  States  and  of  the  State  of  Colorado 


490  ADVERSE  CLAIM. 

in  the  discovery  and  location  of  said  Elephant  Lode  Mining 
Claim.  And  that  he  expended  and  should  recover  from  the 
defendant  the  sum  of  seventy-five  dollars  expenses  and 
counsel  fee  as  charged  for  in  complaint. 

NN.       VERDICT    FOR    DEFENDANT. 

We,  the  jury,  find  the  issues  in  favor  of  the  defend 
ant,  and  that  he  is  the  owner  by  discovery  (or  purchase) 
and  location  and  has  established  his  right  to  the  possession 
and  occupancy  of  the  premises  described  and  claimed  in 
the  answer,  to  wit :  The  Bear  Lode  Mining  Claim,  Survey 
Lot  No.  11,310,  and  that  he,  the  defendant,  is  such  owner 
by  virtue  of  full  compliance  with  the  statutes  of  the  United 
States  and  of  the  State  of  Colorado  in  the  discovery  and 
location  of  said  Bear  Lode  Miming  Claim. 

The  above  forms  comply  with  Section  288  of  the 
Code  and  with  other  points  peculiar  to  an  adverse 
suit,  as  suggested  in  ^ said  decisions  of  the  Supreme 
Court  of  Colorado. 

Rulings  in  Ejectment  Supporting  Adverse. 

Declarations  of  a  locator  may  be  given  in  evi- 
dence to  dispute  his  title. — Harrington  v.  Chambers, 
supra;  Muldoon  v.  Brown,  59  P.  120.  But  not  ad- 
missions made  after  he  has  parted  with  his  title. — 
McOinnis  v.  Egbert,  15  M.  R.  329;  8  Colo.  .}/. 

A  post  marked  as  a  center  post  may  be  shown 
in  adverse  suit  to  have  been  intended  for  a  corner 
post. — Sharkey  v.  Candiani  (Or.),  85  P.  219. 

An  adverse  claimant  may  show  that  the  location 
adversed  is  invalid  by  reason  of  the  existence  of  a 
third  claim  in  which  neither  party  has  any  interest. 
— Harrington  v.  Chambers,  1  P.  362.  Affirmed,  111 
U.  8.  350,  but  with  only  a  general  reference  to  this 
point  in  the  last  paragraph.  To  the  contrary  seems 
Strepey  v.  Stark,  7  Colo.  614;  17  M.  R.  28.  See 
EJECTMENT,  p.  .i'j.l. 

The  Uhlig-Lavagnino  Case. 

This  case  has  been  cited  at  pages  38  and  108; 
we  recur  to  it  on  account  of  its  recent  review,  learn- 
edly and  at  length,  in  Nash  v.  McNamara,  93  P.  405, 
by  the  Supreme  Court  of  Nevada.  That  court  holds 
that  it  is  not  authority  except  in  suits  presenting 
exactly  the  same  facts;  there  must  have  been  three 


A  I   VERSE  CLAIM  491 

successive  locations,  the  second  made  while  the  first 
was  still  vivant,  and  the  third  made  after  the  de- 
fault of  the  first  to  perform  its  annual  labor,  with 
the  lapse  of  a  period  longer  than  the  statute  of 
limitations  between  the  making  of  the  second  and 
third,  followed  by  an  adverse  claim  suit  between  the 
second  and  third  locations.  The  opinion  is  a  labored 
attempt  to  show  loyalty  to  federal  construction,  while 
at  the  same  time  demonstrating  that  that  construc- 
tion is  not  loyal  to  its  own  precedents. 

Mont<iiin*'  r.  Lai.ati.  >  Ah:  ',.  says:  It  is 

binding  only  "within  its  own  limited  circle  of  ex- 

ional  facts,"  and  is  followed  by  Dufresne  v. 
Northern  Light  Co.  2  Alaska,  592,  to  the  same  effect. 
\\v  idben  to  our  own  construction  (p.  38)  that  no 
practical  distinction  can  be  drawn  between  this  de- 
rision and  the  later  and  contrary  holding  in  the 
Brown-Gurney  case,  which  calls  back  to  the  original 

T  ruction  in  the  leading  case  of  Belk  v.  Meager, 
where  the  point  first  arose. 

Diligent  Prosecution. 

The  Land  Office  cannot  adjudicate  upon  the 
question  whether  the  suit  is  being  prosecuted  with 
due  <lilimn<'  .  '  /  />.  1C,;  Richmond  Co.  v.  Rose, 
Hi  U.  8.  5~r,;  n  /'.  //"'.  In  Mars.  v.  Oro  Fino  Co. 
/><//;.  >;'">.  the  suit  was  dismissed  for  delay  in  se- 
curing service. 

Dismissal  and  Reinstatement. 

Jurisdiction  once  attached  remains  and  where 
default  was  had,  but  the  cause  reinstated,  the  ad- 
verse holds,  notwithstanding  the  certificate  of  no  suit 

iim  had  been  filed  during  the  interval. — /  L.  D. 
539.  Nor  will  a  Receiver's  receipt  ob- 
tained in  such  interval  be  allowed  in  evidence. — Mc- 
Evoy  v.  Hyman.  15  M.  R.  300;  25  F.  539;  Deeney  v. 
Mineral  Co.  67  P.  7  .'/. 

Waiver — Withdrawal  or  Failure  to  Support! 

An  adverse  claim  may  be  withdrawn  either  be- 
fore or  after  bringing  the  suit  thereby  waiving  all 


492  ADVERSE  CLAIM. 

rights  claimed.— 4  L.  D.  Ill;  29  L.  D.  89.  Or  by  vo> 
untarily  dismissing  the  suit. — 4  L.  D.  273.  And 
when  suit  is  dismissed  certificate  to  that  effect  must 
be  filed.  Upon  failure  to  issue  summons  within  the 
period  required  by  the  code  the  complaint  may  be 
dismissed. — Steves  v.  Carson,  21  Colo.  280;  and  a 
second  suit  cannot  afterwards  be  brought. — Id.  42 
F.  821.  See  Rules  86,  87. 

The  Court  Trying  the  Adverse  Suit  may  give  full 
relief  and  if  necessary  restore  the  successful  party  to 
possession. — Silver  City  Co.  v.  Lowry,  51  P.  11. 

Defects  in  the  Adverse  Claim  are  not  material 
to  the  issue  at  law  between  the  parties,  and  are  for 
departmental  consideration  only. — Rose  v.  Richmond 
Co.  11  Nev.  25;  Quigley  v.  Gillett,  35  P.  1040. 

The  practice  after  suit  commenced  is  under  state 
law  and  the  proceedings  in  the  Land  Office  are  imma- 
terial to  the  trial. — Bernard  v.  Parmelee,  92  P.  658. 

Title  in  Neither  Party. 

That  if,  in  any  action  brought  pursuant  to  section 
twenty-three  hundred  and  twenty-six  of  the  Revised  Stat- 
utes, title  to  the  ground  in  controversy  shall  not  be  estab- 
lished by  either  party,  the  jury  shall  so  find,  and  judgment 
shall  be  entered  according  to  the  verdict.  In  such  case 
costs  shall  not  be  allowed  to  either  party,  and  the  claimant 
shall  not  proceed  in  the  land-office  or  be  entitled  to  a  patent 
for  the*  ground  in  controversy  until  he  shall  have  perfected 
his  title. — A.  C.  March  8,  1881. 

The  rulings  under  the  above  Act  are,  that  each 
party  is  practically  a  plaintiff,  and  must  show  his 
title.— Slothower  v.  Hunter,  88  P.  36;  but  that  if 
neither  show  title  the  verdict  must  be  special — which 
is  an  assertion  that  the  title  remains  in  the  United 
States,  so  far,  at  least,  as  the  litigating  parties  are 
concerned. — Jackson  v.  Roby,  109  U.  S.  440;  Rosen- 
thai  v.  Ives,  15  M.  R.  324;  1%  P.  904.  See  p.  489. 

The  effect  of  the  Act  is  to  prevent  a  recovery 
upon  possession  alone  in  ejectment  supporting  ad- 
verse.— Becker  v.  Pugh,  15  M.  R.  304;  Upton  v.  Santa 
Rita  Co.  88  P.  275. 


ADVERSE  CLAIM.  493 

After  judgment  of  title  in  neither  party  the  Land 
Office  will  not  allow  the  application  to  be  perfected. 
— Xeicman  v.  Barnes,  23  L.  D.  257. 

Non-Suit—Defendant's  Proof  of  Title. 

It  has  been  held  that  plaintiff  may  be  nonsuited 
as  in  an  ordinary  ejectment. — Kirk  v.  Meldrum,  28 
Colo.  459;  McWilliams  v.  Winslow,  82  P.  538. 

But  if  the  defendant  be  content  with  such  judg- 
ment and  fail  to  prove  his  own  title  he  runs  the  risk 
of  rejection  of  his  application  in  the  Land  Office. — 
28  Colo.  460. 

Plaintiff  at  this  point  is  out  of  court  and  can- 
not demand  a  jury  view  or  cross  examine  or  other- 
wise attack  the  title  of  the  defendant  who  is  now 
proceeding  ex  parte  to  secure  a  judgment  upon  which 
to  predicate  his  right  to  a  patent. — Moffatt  v.  Blue 
Kit*  P.  139;  Connolly  v.  Hughes,  11  P.  681; 

McMillen  v.  Ferrum  Co.  74  P.  462;  Benton  v.  Hop- 
kins, 74  P.  891. 

Entry  of  the  Area  Not  in  Dispute. 

The  Department  has  ruled  that  where  the  ad- 
verse covers  only  parcel  of  the  applying  claim  the 
applicant  may  go  to  entry  and  patent  on  the  area  not 
in  controversy  and  without  waiver  of  any  rights,  de- 
fend against  the  contest  of  the  adverse  claimant  in 
the  suit  supporting  adverse. — 2  L.  D.  744 >  %%  L.  D. 
$43. 

Where  the  discovery  shaft  is  upon  the  ground 
excluded  in  favor  of  a  prior  Survey,  such  fact  does 
not  invalidate  the  application  where  the  applicant 
makes  good  his  adverse  for  the  excluded  area. — 28 

/   D.  sax 

Proceedings  After  Determination  of  Suit. 

The  Land  Office  requirements  in  such  case  are 
1  in  Rule  85. 

If  the  judgment  is  in  favor  of  the  defendant  (the 
applicant)  he  files  a  certified  copy  of  the  judgment 
roll  (14  L.  D.  308),  and  is  allowed  to  pay  for  and  en- 


494  ADVERSE  CLAIM. 

ter  the  claim  or  so  much  thereof  as  has  been  awarded 
to  him. 

If  the  judgment  is  in  favor  of  the  adversing 
party,  he  files  certified  copy  of  the  judgment  roll,  and 
must  obtain  and  file  plat  and  survey,  and  file  full  set 
of  final  entry  papers;  in  fact,  he  must  perform  what- 
ever is  required  of  an  applicant,  except,  of  course, 
the  posting  and  publication. 

The  adverse  claimant  in  such  proceeding  enters 
only  the  area  in  conflict  recovered  by  his  judgment. 
—27  L.  D.  375.  If  he  desires  to  patent  his  full  claim 
he  must  apply  in  all  respects,  including  posting  and 
publication,  as  an  original  applicant. 

In  such  case  where  he  has  already  begun  his  ap- 
plication and  excluded  defendant's  prior  survey,  the 
judgment  roll  shows  him  entitled  to  and  he  is  allowed 
to  enter  such  ground,  although  originally  excluded. 
If  he  does  not  begin  his  application  until  after  he 
has  obtained  judgment,  liis  application  will  include 
the  areas  formerly  in  conflict. 

Where  the  suit  is  compromised,  if  there  is  only 
one  adverse,  it  is  more  convenient  to  dismiss  the  suit, 
taking  deed  or  bond  for  deed  from  the  applicant.  In 
such  case,  upon  filing  certificate  of  dismissal,  the 
original  survey  goes  to  patent  without  further  com- 
plications, and  the  defendant  can  convey  after  entry 
according  to  the  terms  of  settlement. 

But  in  all  this  class  of  cases,  and  especially 
where  there  are  two  or  more  adverses,  legal  counsel 
should  be  taken.  A  settlement  between  the  applicant 
and  one  adversor  cannot  bind  a  second  adversor; 
there  may  be  questions  of  retaining  end  lines,  or  the 
discovery  shaft,  or  patent  improvements;  and  it  may 
be  very  material  as  affecting  extralateral  rights  or 
on  the  issue  of  priority,  as  to  which  lode  had  best 
take  the  patented  title. 

An  adjudication  of  priority  in  favor  of  part  of  a 
lode  seems  to  be  an  adjudication  of  priority  on  -the 
questions  arising  in  any  later  form  of  controversy 
between  the  same  lodes. — Last  Chance  v.  Tyler  Co. 
157  U.  8.  683;  Bunker  Hill  Co.  v.  Empire  Co.  109  F. 


Al'VKKSK  CLAIM.  i:u 

/  /  /  F.   420.     But  see  U.  S.  M.   Co.   v.  Lawson 
as  cited  ante,  p.  143. 

Annual  Labor  Pending  the  Trial. 

In  the  matter  of  the  Marburg  Lode,  30  L.  D.  ..'".'. 
the  department  held  that  where  entry  has  been  stayed 
by  the  operation  of  a  protest  or  adverse,  a  delay  not 
chargeable  to  the  applicant,  the  annual  labor  need 
not  be  kept  up.  That  it  will  not  recognize  as  protest- 
ant  a  relocation  made  during  such  interval,  based  on 
non-performance  of  labor.  If  such  be  the  correct 
ruling  we  cannot  see  why  it  should  not  also  apply 
to  the  adversing  claim.  Questions  of  procedure  in 
the  Land  Office  are  for  that  office  to  decide.  Con- 
st nut  ion  of  statutes  defining  conditions  of  title  are 
for  the  courts.  The  question  is  so  nearly  one  of  the 
latter  class  that  in  the  absence  of  judicial  decision 
to  the  same  effect  it  is  wholly  unsafe  to  neglect  the 
annual  labor  in  reliance  on  this  case. — See  Rule  55; 
XI  L.  D. 

In  Willitt  r.  US  F.  937,  the  peculiar  rul- 

ing was  made  that  both  plaintiff  and  defendant  must 
show  that  they  had  respectively  performed  their  an- . 
nual  labor  during  the  preceding  year. 

Agreement  to  Not  Adverse. 

When  contesting  claimant s  agree  with  the  appli- 
cants to  file  no  adverse  in  consideration  of  the  appli- 
cants undertaking  to  convey  the  title  to  the  ground 
in  conflict  or  some  other  interest  in  the  claim  when 
entry  is  made  or  patent  issues — such  agreement 
should  be  formally  reduced  to  writing  under  signa- 
ture and  seal.  Such  a  contract  is  not  against  public 
policy  and  will  be  enforced. — St.  Louis  Co.  v.  Montana 
Co.  171  U.  S.  650.  In  Dude  v.  Ford,  138  U.  S.  587,  a 
case  of  this  kind  but  the  contract  verbal,  it  was  held 
to  be  within  the  Statute  of  Frauds,  i.  e..  a  contract 
void  unless  written,  and  the  plaintiff  went  without 
relief.  The  decision,  however,  is  largely  based  on 
asserted  defects  in  the  pleadings  and  can  hardly  be 
considered  as  holding  that  so  gross  an  instance  of 
wrong  would  be  in  all  cases  shielded  by  that  statute. 


496  PROTEST. 

PROTEST. 


The  office  of  a  protest  is  to  show  that  no  patent, 
such  as  applied  for,  should  issue — as  where  a  mill 
site  patent  is  asked  for  on  mineral  ground. 

Or  that  it  should  not  issue  to  the  particular  appli- 
cant by  reason  of  some  defect  of  person,  as  that  the 
applicant  is  an  alien  corporation;  or  for  failure  to 
comply  with  the  practice  of  the  department  in  some 
serious  particular.  It  is  not  safe  to  rely  on  the  pre- 
sumption that  the  Land  Office  will  of  its  own  motion 
observe  every  departure  from  its  own  rules. 

The  protestant  can  never  by  his  protest  acquire 
title.  He  can  at  most  defeat  the  efforts  of  the  appli- 
cant. But  if  the  protest  be  sustained  and  the  appli- 
cant be  compelled  to  begin  de  novo,  as  for  instance 
where  the  irregularity  pointed  out  to  the  department 
is  a  short  publication  and  he  is  required  to  go  back 
to  that  point  and  republish — upon  the  new  proceed- 
ings or  the  republication  the  protestant  has  the  op- 
portunity to  file  his  adverse  claim.  Any  stranger  to 
the  original  application  would  have  the  same  right. — 
23  L.  D.  895. 

The  fact  that  the  protestant  is  or  claims  to  be 
the  real  owner,  or  to  have  the  better  title,  has  its 
place  in  an  adverse  and  is  not  a  ground  of  protest. — 
..'..'  L.  I).  *;._'; ;  but  it  should  be  averred  to  give  stand- 
ing to  the  protestant. 

A  protestant  claiming  an  interest  is  allowed  the 
right  of  appeal.— 8  L.  D.  122;  16  Id.  532;  29  Id.  280. 
But  if  he  has  no  such  interest  he  is  regarded  as  a 
mere  amicus  curiae  and  has  no  such  right. — 8  L.  D. 
'i-W.  A  party  having  no  surface  conflict  is  not  such  a 
party  in  interest  as  to  have  the  right  to  appeal. — 6 
L.  D.  318;  19  Id.  356.  Nor  has  a  party  whose  only 
claim  is  by  location  made  after  the  protest  was  filed. 
—19  L.  D.  356. 

The  department  will  entertain  a  protest  as  pro- 
vided in  R.  S.  Sec.  2325,  showing  that  "the  applicant 
has  failed  to  comply  with  the  terms  of  this  chapter" 
— that  is,  has  made  a  substantially  irregular  step  in 


PROTEST.  497 

his  location  or  in  his  proceedings  to  obtain  patent,  as 
for  instance  that  he  has  not  disclosed  mineral  in  his 
discovery  shaft  or  elsewhere  within  the  lines  of  the 
<  laim  (2  L.  D.  ?  }•>' ;  /?  1,1.  112;  27  Id.  396),  or  that  the 
publication  was  defective,  the  $500  improvements  not 
made  f  /.-'  /..  it.  356;  ,;7  Id.  396),  or  any  other  serious 
want  of  conformity  to  the  law  or  to  the  Land  Office 
regulations. — 16  L.  D.  532. 

But  the  fact  that  the  discovery  is  not  upon  the 
public  domain  because  upon  location  of  the  pro- 
testant's  of  alleged  earlier  date  and  other  like  points, 
which  if  availed  of  by  adverse  would  have  shown 
better  title  in  the  protestant,  will  not  be  considered  as 

mds  of  protest.— 22  L.  D.  624;  W  Id.  191;  26  Id. 
.:»  hi.  >;:. 

The  Test  Between  the  Two  Classes  of  Cases  Is: 
That  where  a  defect  exists  which  is  a  matter  of  pub- 
lic interest,  and  which  shows  that  the  applicant  has 
not  proceeded  regularly  as  to  the  United  States  or 
as  to  the  entire  body  of  prospectors  who  are  entitled 
to  see  that  all  are  required  to  proceed  under  like 
restrictions,  a  protest  will  be  considered;  but  where 
the  point  is  one  of  interest  only  as  between  the  ap- 
plicant and  the  protestant,  or  as  between  the  appli- 
cant and  a  third  party  who  is  not  complaining  <  .'/ 
L.  D.  SO;  Mod.  on  Review,  Id.  544),  the  protestant 
cannot  by  his  protest  claim  the  right  to  litigate  in 
this  form  what  he  should  have  contested  by  adverse. 

FORM    OF    PROTEST. 

In  th««  mutter  of  the  Application  of  The  Anaconda  Mininn 
/M/NJ/  for  patent  on  the  Martha  Becker  Mill  Site. 

Sniv.  v  !  /o  Land  Office,  Colorado. 

•To  the  Register  and  Receiver  of  said  United  States  Land 

Office: 

r   protestant,   C.    If.   Al<lrich,  whose  postofflce  ad 

«lr.-ss  is  ctiinii/,,.  niiiH.itt.  a  citizen  of  the  United  States  over 

ih.-    .)<:»'    "t    t  \\.-my-one    years,    hereby    respectfully   protests 

0*1    the  entry  by,   and  issuance  of  patent  to,   The  Ana- 

I'nntlg   Alining   Company,  on   their   so-called   mill   site  styled 

*In  the  General  Land  Office  the  address  is  "To  The 
Honorable  iii«-  Commissioner  of  the  General  Land  Office." 
In  the  I»»'pni -tiiM-nt  "To  The  Honorable  the  Secretary  of  the 
Interior." 


498  PROTEST. 

the  Mtirllui  //cr/trr  Mill  Site,  Survey  Lot  No.  930  B,  situate 
in  Cripple  Creek  Mining  District,  County  of  Ttlhr,  State  of 
Colorado.  Because : 

1.  The  said  so-called  mill  site  is  not  and  never  was 
used  or  occupied  in  connection  with  the  said  Martha  lt> 
Lode   for   mining   or   milling   purposes. 

2.  It  is  not  and  never  was  used  or  occupied  by  the 
applicant    or    its   grantors    in    connection    with    any    lode    or 
by   itself   for   mining   or   milling   purposes. 

3.  There  are  no  improvements  and  never  have  been 
any    improvements   upon   said   mill   site   except    the   improve- 
ments made  by  your   protestant. 

4.  The   said    mill    site    is    below    the   mill    nnd   below 
the  tailrace  of  the  mill   of  the  said  applicant  company   and 
lias   never   been  and   is   not   now  parcel   of  nor   appurtenant 
to  said  mill,  nor  included  within  the  mill  site  on  which  said 
mill     stands. 

,r>.     Said   so-called   mill   site  or   a  great   part   thereof, 
the    conflicting    area     being    shown    by    the    plat    hereto    at 
tarhcd   duly   cert  hied    (see  p.  -J?..  i .  was    in  good  faith   located 
as    the   Lion   Mill    Site   by   your    protostant    in   the   year 
and    long    prior    to    the    said    application    and    is    now    bring 
used  for  mining  purposes  in  connection  with  the  Linn    Lode, 
lying  immediately  above  the  said  mill  site,  owned  nnd  ln-in^ 
worked    by   your    protestnnt. 

(6,  etc.;  7,  etc.)  Add  or  substitute  other  reasons  ac- 
cording to  th«-  farts.  ».  ft. — the  publication  was  not  posted 
on  the  Land  iMlice  Bulletin  during  the  period  of  newspaper 
publication-  the  local  i<>n  of  said  mill  site  Is  on  mineral  land 
and  land  more  valuable  for  mineral  than  for  mill  site  pur 
poses — etc. 

Wherefore  for  thes<  causes  as  verified  by  the  affidavit 
of  your  protestant  attached  hereto,  and  as  well  for  the 
want  of  proper  proof  that  the  said  so-called  Martha  />'• 
Mill  Site  is  being  "used  or  occupied  bv  the  proprietor  of 
the  said  Mnrlfni  H<  <!.,  r  I.mle  for  mining  or  milling  pur 
poses."  as  required  by  the  terms  of  section  2337  of  tho  Be 
vised  Statutes  of  the  United  States,  and  that  the  applicant 
has  otherwise  failed  to  comply  with  the  terms  of  Chapter 
<;  of  Title  XXXII  ol  ^aid  Ilevised  Statutes,  entitled  "Min 
oral  Lands  and  Mining  Resources,"  your  petitioner  protests 
as  aforesaid. 

P.    .T.   IM-IJAX.  Pueblo.  C.   H.   ALDRICH. 

Attorney  for  Protestant. 

STATE  op  COLORADO,  County  of  Teller:  ss. 

Before  me,  the  subscriber,  E.  H.  Grttber,  a  Notary 
Public  in  and  for  said  County,  personally  appeared  C.  If. 
\J<lrich.  who.  being  duly  sworn,  saith  that  he  is  the  pro- 
testant named  in  the  foregoing  protest  subscribed  by  him  : 
that  he  has  read  the  same  and  knows  the  contents  thereof. 
and  that  the  same  and  the  matters  and  things  therein 
stated  are  true.  C.  H.  ALDRICH. 

Sworn  and  subscribed  before  me  this  10th  day  of 
January.  A.  D.  1908.  E.  H.  Gruber, 

[SEAL.]  Notary  Public. 


TIDE  LANDS. 

TIDE  LANDS. 


Minerals  lying  beween  high  and  low  tide,  as 
well  as  under  the  sea,  in  a  Territory,  belong  to  the 
National  government,  but  they  are  not  considered 
part  of  the  public  domain  open  to  the  settler  or  occu- 
pant under  any  form  of  entry.  Upon  admission  of 
the  Territory  this  sovereignty  passes  to  the  State 
Government.—^.'/  /,.  />.  .*.%';  Shively  v.  Boivlby,  152 
U.  S.  I. 

The  boring  for  oil  may  be  enjoined  at  the  suit 
of  the  frontage  owner  as  an  invasion  of  his  right  of 
access  to  the  ocean. — San  Francisco  Union  v.  R.  O. 
R.  Co.  77  P.  823. 

By  the  Alaska  Act  (p.  501)  the  tide  lands  of 
Bering  Sea  are  opened  to  exploration  and  mining  to 
\vit:  the  lands  between  high  and  low  tide,  under 
miners'  rules,  and  the  lands  below  low  tide  under 
rules  to  be  prescribed  by  the  Secretary  of  War.  Such 
latter  rules  are  limited  to  "the  preservation  of  order 
and  the  protection  of  the  interest  of  commerce"  and 
we  see  no  reason  why  the  rules  generally  of  a  dis- 
trict on  the  beach  should  not  extend  to  ground  be- 
low the  tide  on  all  points  not  covered  by  the  Secre- 
tary's rules. 

The  Act  contemplates  only  the  temporary  work- 
ing of  this  class  of  claims,  not  providing  for  patent 
to  issue  at  any  period.  Except  as  to  patenting,  the 
U.  S.  Mining  Acts  are  extended  to  them,  so  far  as 
applicable,  but  the  mining  districts  are  especially 
empowered  to  make  rules  as  to  record,  and  impliedly 
as  to  notice,  staking,  size  of  placer  claims,  labor, 
representation  and  all  other  points  not  controlled  by 
the  Acts  of  Congress.  This  doubtless  includes  the 
right  to  restrain  or  control  the  location  and  repre- 
sentation of  claims  by  agency. 

At  other  points,  on  shore  of  either  State  or  Ter- 
ritory, mining  by  the  first  occupant  is  a  trespass  as 
against  the  Government,  but  no  third  party  has  the 
right  to  complain. 


500  ALASKA. 

The  rights  of  parties  mining  on  such  premises 
depend  on  priority  of  possession,  and  those  rules  of 
law  which  govern  that  class  of  cases  where  the  real 
owner  is  not  asserting  his  title  but  allows  to  third 
parties  the  present  enjoyment  of  the  use,  by  suf- 
ferance. 

ALASKA. 


The  following  are  the  clauses  of  the  Alaska  Act 
of  June  6,  1900,  31  Stat.  L.  321,  material  to.  mining 
claimants.  All  the  special  clauses  as  to  aliens  were 
rejected,  and  the  status  of  mining  titles  is  left  the 
same  as  in  other  States  and  Territories  where  there 
are  few  or  no  statutory  prescriptions,  the  Act  evi- 
dently contemplating  control  by  district  rules  when 
necessary  or  desired  by  the  miners  to  supplement 
the  general  terms  of  the  mining  Acts. 

Section  13,  Title  I,  provides  for  the  division  of 
the  Territory  into  three  "recording  divisions,"  the 
bounds  of  which  were  fixed  by  an  act  approved  June 
13,  1902.-^2  St.  L.  385. 

The  first  division  includes  all  the  territory  East 
of  the  141st  degree  of  Longitude. 

The  second  includes  all  territory  W.,  N.  W.  and 
N.  of  a  line  commencing  at  mouth  of  Colville  River; 
follow  up  the  river  to  where  it  crosses  the  154th 
meridian  line  the  second  time;  follow  said  meridian 
S.  to  west  side  of  Tohtankella  Mtn.  and  the  Yukon 
River;  thence  southeasterly  to  western  side  of  Mt. 
McKinley;  thence  southwesterly  to  most  northern 
point  of  Lake  Clark;  thence  along  N.  W.  side  of  Lake 
Clark  to  the  60th  degree  latitude;  thence  West  along 
said  degree  to  Kuskokwim  Bay,  including  the  main- 
land West  of  said  Bay  and  all  islands  N.  of  59th  de- 
gree. 

The  third  division  includes  the  rest  of  the  Terri- 
tory. 

These  are  to  be  subdivided  into  "recording  dis- 
tricts," and  for  each  district  a  recorder  has  been  or 
is  to  be  appointed. 


ALASKA.  501 

The  clerk  of  the  court  is  ex  officio  recorder  of  all 
that  part  of  any  recording  division  not  set  off  into 
recording  districts. 

Record  of  Claims. 

Sec.  i.'i.  *  *  *  Notices  of  location  of  mining 
claims  shall  be  filed  for  record  within  ninety  days  from  the 
•  late  of  the  discovery  of  the  claim  described  in  the  notice, 
and  all  instruments  shall  be  recorded  in  the  recording  dis- 
trict in  which  the  property  or  subject-matter  affected  by 
the  instrument  is  situated,  and  where  the  property  or  sub- 
ject-matter is  not  situated  in  any  established  recording  dis- 
trict the  instrument  affecting  the  same  shall  be  recorded  in 
th«>  office  of  the  clerk  of  the  division  of  the  court  having 
supervision  over  the  recording  division  in  which  such  pt«i> 
erty  or  subject-matter  is  situated. 

District  Rules — Old  Records. 

•  *  •  Miners  in  any  organized  mining 
district  may  make  rules  and  regulations  governing  the  re- 
.  '<rd in-  oi  notices  01  location  of  mining  claims,  water  rights, 
ilumrs  and  ditches,  mill  sites  and  affidavits  of  labor,  not  in 
;.-t  \\iili  this  Act  or  the  general  laws  of  the  United 
stairs:  and  nothing  in  this  Act  shall  be  construed  so  as  to 
prevent  the  miners  in  any  regularly  organized  mining  district 
not  within  any  recording  district  established  by  the  court 
from  electing  their  own  mining  recorder  to  act  as  such  until 
a  recorder  therefor  is  appointed  by  the  court:  Prori<l<  <i 
further,  All  records  heretofore  regularly  made  by  the  United 
States  commissioner  at  Dyea,  Skagway,  and  the  iv< -order 
at  Douglas  City,  n.it  in  .onili.-t  \\iih  any  records  regularly 
made  with  the  I'm  commiMioner  at  .limeau.  are 

hereiiy  le^aii/ed.  And  all  records  heretofore  made  in  good 
faith  in  any  regularly  organised  mining  district  are  hereby 
made  public  records,  ana  the  same  shall  be  delivered  to 
the  recorder  for  the  recording  district  including  such  min- 
ing district  within  six  months  from  the  passage  of  this  Act. 

Mining  Acts  Extended — Tide  Lands  and  Sub-Sea 

Minerals. 

-The  laws  of  the  United  States  relating  to 
mining  claims,  mineral  locations,  and  rights  incident  thereto 
are  hereby  extended  to  the  district  or  Alaska;  Provi>i><i, 
That  subject  only  to  such  general  limitations  as  may  be 
necessary  to  exempt  navigation  from  artificial  obstructions 
all  land  mid  shoal  water  between  low  and  mean  high  tide 
«.n  the  shores,  bays,  and  inlets  of  Bering  Sea,  within  the 
jurisdiction  of  the  United  States,  shall  be  subject  to  exnlma 
tion  and  mining  for  pold  and  other  precious  metals  by 
citizens  of  the  United  States,  or  persons  who  have  legally 
declared  their  intentions  to  become  such,  under  such  rea- 
sonable rules  and  regulations  as  the  miners  in  organized  min- 


602  ALASKA. 

ing  districts  may  have  heretofore  made  or  may  hereafter 
make  governing  the  temporary  possession  thereof  for  ex- 
ploration and  mining  purposes  until  otherwise  provided  by 
law  ;  Provided  further,  That  the  rules  and  regulations  es- 
tablished by  the  miners  shall  not  be  in  conflict  with  the 
mining  laws  of  the  United  States  ;  and  no  exclusive  r^nri* 
shall  be  granted  by  the  Secretary  of  War  authorizing  any 
person  or  persons,  corporation  or  company  to  excavate  or 
mine  under  any  of  said  waters  below  low  tide,  and  if  such 
exclusive  permit  has  been  granted  it  is  hereby  revoked  and 
declared  null  and  void ;  but  citizens  of  the  United  States 
or  persons  who  have  legally  declared  their  intention  to 
become  such  sli;ill  have  the  right  to  dredge  and  mine  for 
gold  or  other  precious  metals  in  said  waters,  below  low 
tide,  subject  to  such  general  rules  and  regulations  as  the 
Secretary  of  War  may  prescribe  for  the  preservation  of  order 
and  the  protection  of  the  Interests  of  commerce;  such  rules 
and  regulations  shall  not,  however,  deprive  miners  on  tin* 
ix.ich  of  the  right  hereby  given  to  dump  tailings  into  «>r 
pump  from  the  sea  opposite  their  claims,  except  where 
such  dumping  would  actually  obstruct  navigation,  and  the 
reservation  of  a  roadway  sixty  feet  wide,  under  the  tenth 
section  of  the  Art  of  May  fourteenth,  eighteen  burning  and 
ninety-eight,  entitled  "An  Art  extending  the  homestead  laws 
and  providing  I'm-  right  of  way  for  railroads  in  the  IMstrin 
Of  Alaska,  and  for  other  purposes,"  shall  not  apply  tn  min 
eral  lands  or  town  sites. — Approved  June  6,  1900. 

Proof  of  Annual  Labor. 

That  during  each  year  and  until  patent  has  Item 
issued  therefor,  at  least  one  hundred  dollars'  worth  of  labor 
shall  be  performed  or  improvements  made  on,  or  for  the 
benefit  or  development  of.  In  accordance  with  existing  law, 
each  mining  claim  in  the  district  of  Alaska  heretofore  or 
hereafter  located.  And  the  locator  or  owner  of  such  claim 
or  some  other  person  having  knowledge  of  the  facts  may 
also  make  and  file  with  the  said  recorder  of  the  district  In 
which  the  claims  shall  be  situate  an  affidavit  showing  tin- 
performance  of  labor  or  making  of  Improvements  to  the 
amount  of  one  hundred  dollars  as  aforesaid  and  specifying 
the  character  and  extent  of  such  work.  Snrh  affidavit  shall 
set  forth  the  following:  First,  the  name  or  number  of  tin- 
mining  claims  and  where  situated;  second,  the  number  of 
days  work  done  and  the  character  and  value  of  the  im 
provements  placed  thereon:  third,  the  date  of  the  perform 
ance  of  such  labor  and  of  making  improvements:  fourth. 
at  whose  instance  the  work  was  done  or  the  Improvements 
made  ;  fifth,  the  actual  amount  paid  for  work  and  improve- 
ments, and  by  whom  paid  when  the  same  was  not  done  by 
the  owner.  Such  affidavit  shall  be  prima  facie  evidence  of 
the  performance  of  such  work  or  making  of  such  improve- 
ments, but  if  such  affidavits  be  not  filed  within  the  tim«> 
fixed  by  this  Act  the  burden  of  proof  shall  be  upon  the 
claimant  to  establish  the  performance  of  such  annual  work 
and  improvements.  And  upon  failure  of  the  locator  or 


i'HlLll'l'lNK   ISLANDS.  503 

i  »i'  any  such  claim  to  comply  with  the  provisions  of 
this  Act.  ns  to  performance  of  work  and  improvements,  such 
claim  shall  become  forfeited  and  open  to  location  hy  others 

:  no  locution  ..f  the  sain*1  had  ever  been  made.  The 
aMid.-ivits  required  h»  r*  by  may  be  made  before  any  officer 
authori/rd  to  administer'  oath's,  ami  the  provisions  of  sec- 
tion* lifty  three  hundred  and  ninety  two  and  fifty-three  hun- 
dred .-inti  ninety  three  of  the  Revised  Statutes' are  hereby 

nded  to  such  affidavits.  Said  affidavits  shall  be  filed 
not  later  than  ninety  days  after  the  close  of  the  year  in 
which  such  work  is  performed. — Sec.  1,  Mar.  2,  19(ff.  5f 
st.  I  • 

The  last  section  above  printed  provides  especially 
for  proof  of  annual  labor.  In  Section  15  there  is  a 
clause  allowing  the  record  of  "Notice  and  declaration 
of  wairr  riuhts"  and  the  obvious  intent  of  the  act 
thai  all  details  of  location  not  inconsistent  with 
the  U.%  S.  Mining  Acts  are  left  to  the  regulation  of 
organized  mining  districts. 

The  coal  land  laws  are  extended  to  embrace 
Alaska  by  A  <  June  6.  1900.— 31  St.  L.  658. 

A  special  Act  for  location  and  patenting  of  coal 
lands  in  Alaska  was  approved  April  28,  1904. — SS  8t. 
L.  525;  S3  L.  D.  11',. 

Titles  Prior  to  1900. 

From  1884  to  1900  (23  St.  L.  24)  the  Laws  of 
Oregon  so  far  as  they  covered  the  subject  were  in 
force.  Those  statutes  only  required  a  location  no- 
tice and  record  and  forbade  more  than  one  location 
by  the  same  person  on  the  same  lode.  The  universal 

MS  of  Sec.  2324  of  course  applied.  And  all  posses- 
sory claims  prior  to  the  Act  of  1884  were  validated 
i.y  the  Act  of  that  year. — Bennett  v.  Harkrader,  158 
U.  8.  443. 


PHILIPPINE  ISLANDS. 


An  extremely  detailed  and  complicated  mining 
code  for  the  Philippines  is  contained  in  the  Act  of 
July  1,  1902,  providing  a  temporary  government  for 
those  islands. — 32  St.  L.  697.  Materially  amended 
Feb.  6,  1905.— 33  St.  L.  692. 


504  TEXT  OF  U.  S.  STATUTES  REPEALED. 

TEXT  OF  U.  S.  STATUTES  REPEALED. 


Sections  of  Act  of  July  26,  1866,  Repealed  by  Act 

of  May  10,  1872,  and  Not  Found  in 

the  Revised  Statutes. 


Original  license  to  Explore. 

Sec.  I. — That  the  mineral  lands  of  the  public  domain, 
I  mill  surveyed  and  unsurveyed.  are  hereby  declared  to  be  free 
and  often  to  exploration  and  occupation  by  all  citizens  of 
the  United  States,  and  those  who  have  declared  their  in 
tent  ion  to  hecome  citi/ens.  subject  to  such  regulations  as 
may  be  prescribed  by  law,  and  subject  also  to  the  local  cus- 
toms or  rules  of  miners  in  the  several  mining  districts,  so 
far  MS  the  same  may  not  be  in  conflict  with  the  laws  of 
the  United  States. 

Improvements — Dip — Patent. 

Sec.  2. — That  whenever  any  person  or  association  of 
persons  claim  a  vein  or  lode  of  quartz,  or  other  rock  in  place, 
bearing  gold,  silver,  cinnabar,  or  copper,  ha  vim:  previously 
occupied  and  improved  the  same  according  to  the  local  cus- 
tom or  rules  of  miners  in  the  district  where  the  same  is 
situated,  and  having  expended  in  actual  labor  and  improve- 
ments thereon  an  amount  of  not  less  than  one  thousand 
dollars,  and  in  regard  to  whose  possession  there  Is  no  con 
trovorsy  or  opposing  claim,  it  shall  and  may  be  lawful  for 
said  claimant  or  association  of  claimants  to  file  in  the 
local  land  office  a  diagram  of  the  same,  so  extended  laterally 
or  otherwise  as  to  conform  to  the  local  laws,  customs,  and 
rules  of  miners,  and  to  enter  such  tract  and  receive  a  patent 
therefor,  granting  such  mino.  together  with  the  ri^lu  to 
follow  such  vein  or  lode  with  its  dips,  angles,  and  vari- 
ations, to  any  depth,  although  it  may  enter  the  land  ad- 
joining, which  land  adjoining  shall  be  sold  subject  to  this 
condition. 

Application  for  Patent. 

Sec.  3. — That  upon  the  filing  of  the  diagram  as  pro- 
vided in  the  second  section  of  this  act,  and  posting  the  same 
in  a  conspicuous  place  on  the  claim,  together  with  a  notice 
of  intention  to  apply  for  a  patent,  the  register  of  the  land 
ollice  shall  publish  a  notice  of  the  same  in  a  newspaper  pub- 
lished nearest  to  the  location  of  said  claim,  and  shall  also 
post  such  notice  in  his  office  for  the  period  of  ninety  days  : 
and  after  the  expiration  of  said  period,  if  no  adverse  claim 
shall  have  been  filed,  it  shall  be  the  duty  of  the  surveyor- 
general,  upon  application  of  the  party,  to  survey  the  prem- 


TKXT  OF  U.  S.  STATUTES  REPEALED.  505 

ises  and  make  a  plat  thereof,  indorsed  with  his  approval, 
-nating  the  number  and 'description  of  the  location,  the 
value  of  the  labor  and  improvements,  and  the  character  of 
ill.-  vein  exposed  ;  and  upon  the  payment  to  the  proper  officer 
of  live  dollars  per  acre,  together  with  the  cost  of  such  sur- 
vey, plat,  and  notice,  and  giving  satisfactory  evidence  that 
said  diagram  and  notice  have  been  posted  on  the  claim  dur- 
i  id  period  of  ninety  days,  the  register  of  the  land  office 
shall  transmit  to  the  general  land  office  said  plat,  survey, 
and  description  :  and  a  patent  shall  issue  for  the  same  there- 
upon. P.ut  s.i id  plat,  survey,  or  description  shall  In  no  case 
cover  more  than  one  vein  or  lode,  and  no  patent  shall  issue 
for  more  than  one  vein  or  lode,  which  shall  be  expressed  in 
the  patent  issued. 

Form  of  Survey — Length  of  Claim. 

4. — That  when  such  location  and  entry  of  a  mine 
shall  be  upon  tuwarreyed  lands,  it  shall  and  may  be  lawful, 

after  tin-  extension  thereto  of  the  public  surveys,  to  adjust 
ih»-  surveys  !••  tin-  limits  of  the  premises  according  to  the 
l<>c.-ni..n  and  ]•« -ss«  ssion  and  plat  aforesaid,  and  the  surveyor- 

-urveys,  vary  the  same  from 

•ilar  fornr  to  suit  the  circumstances  of  the  country 
and  the  Im-al  rules,  laws,  and  customs  of  miners:  Provided. 
no  location   hereafter  made  shall   exceed   two  hundred 
in  length  along  the  fein  for  each  locator,  with  an  add! 
ti.'pal    claim    for   discovery    to   the   discoverer    of    the   lode, 
with  the  right  to  follow  such  vein  to  any  depth,  with  all  its 
1 1 ions,  and  angles,  together  with  a  reasonable  quan- 
tity  of  surface  for  the  convenient   working  of  the  same  as 
fixed  by   local    rules:    in//  /.ror/./rr/  further,  That  no  person 
may  •     than    one   location   on    the  same   lode,   and 

not"  more  than  three  thousand  feet  shall  be  taken  In  any  ofle 
claim  by  any  association  of  persons. — See  paycs  12,  15. 

Adverse  Claims. 

»;  That  whenever  any  adverse  claimants  to  any 
mine  located  and  claimed  as  aforesaid  shall  appear  before 
the  approval  of  the  survey,  as  provided  In  the  third  section 
of  this  act,  all  proceedings  shall  be  stayed  until  a  final  set- 
tlement and  adjudication  In  the  courts  of  competent  Jurls- 
di.tion  of  the  rights  of  possession  to  such  claim,  when  a 
patent  may  Issue  as  in  other  cases. — H  8t.  L.  251. 


506        TEXT  OP  U.  S.  LAWS  IN  FORCE. 

FULL  TEXT  OF  UNITED  STATES  LAWS  NOW 
IN  FORCE. 


The  text  is  taken  from  the  last  edition  "Revised 
Statutes  of  the  United  States,"  and  the  Supplement 
and  Statutes  at  Large  to  the  Second  Session  of  59th 
Congress,  1907.  This  revision  includes  the  unrepealed 
sections  of 

An  act  granting  the  right  of  way  to  ditch  and  canal 
owners  over  the  public  lands,  and  for  other  purposes. — Ap 
proved  July  26,  1866. 

An  Act  to  amend  .in  Act  granting  the  right  of  way 
to  ditch  and  canal  owners  over  the  public  lands,  and  for 
other  purposes. — Apprnml  .////;/  ;».  /870. 

An  net  to  promote  the  development  of  the  mining  re- 
sources of  the  1'nited  States. — Approved  May  10,  fffl 

Commonly  called  the  "Mining  Acts,"  with  all 
their  amendments,  and  miscellaneous  sections  from 
other  Acts. 

The  sections  of  the  Act  of  18G6,  repealed  by  the 
Act  of  1872,  are  printed,  ante  p.  504. 

TITLE     XIII.    CHAI-rr.l:     M:\KVI  i 

Possessory  Actions. 

Sec.  '.i  Ki.  No  possessory  action  bet  ween  persons,  in 
any  court  of  the  I'nited  States,  for  the  recovery  ««t  any 
mining  title,  or  for  damages  to  any  such  title,  shall  l><>  ai 
fected  by  the  fact  that  the  paramount  title  to  tin-  land 
in  which  such  mines  lie  is  in  the  I  Hii«d  States:  but  ea<  h 
case  shall  be  adjudged  by  the  law  of  possession. — f<<  <  <  /  ,  /, 
/:.  IMf,  Nee  p.  7. 

TITLK     XXXII.     ril.M'TKH     SIX. 
KNTITI.KI)     "MINKim.     I.  \\I-S     AND     MINING      Kr.Snri:-   ! 

Reserved  from  Sale  Under  the  Pre-Emption  Acts. 

Sec.  2318. — In  all  cases  lands  valuable  for  minerals 
shall  be  reserved  from  sale,  except  as  otherwise  expressly 
directed  by  law. — 8cc.  5,  -lulu  ',.  / 

General  License. 

Sec.  2319. — All  valuable  mineral  deposits  in  lands  be- 
longing to  the  United  States,  both  surveyed  and  unsurveyed, 

NOTE. — Each  Statute,  State  or  Federal,  printed  in 
this  book,  has  been  compared  with  the  official  original  pub- 
lication so  as  to  have  its  exact  wording  and  punctuation.  • 


TEXT  OF  U.  S.  LAWS  IN  FORCE.        507 

are  hereby  declared  to  be  free  and  open  to  exploration  and 
purchase,  and  the  lands  in  which  they  are  found  to  occupa- 
tion and  purchase,  bv  citizens  of  the  United 
District  ml    those   who   have  declared  their 

Rules.  Intention  to  become   such,   under   regulations 

scribed    by    law,    and    according    to    the 

loeal  customs  or  rules  of  miners  in  the  several  mining-dis- 
tricts, so  far  as  the  same  are  applicable  and  not  inconsistent 
with  the  laws  of  the  United  States. — Sec.  1,  May  10,  1872. 

length  of  Claims. 

iins    upon    veins    or    lodes    of 

quart/,  or   other   r..ck    in    place   I. earing  gold,  silver,  cinnabar. 

lead,    tin.    copper.    .•!•    other    valuable    deposits,    heretofore    1" 

•  !.  shall   te  ^o\-«  rned  as  to  length  along  the  vein  or  lode 

i»y  the  cm  filiations,  Mn<i   laws   iii   force  at    the  date 

of    their    lor;iti«.n.       A    mining-claim    located    after    the    tenth 

day   of    May.    (-ii.'lit«en    hundred  and  seventy-two,   whether   lo 

•  I    by    one  or   more   persons,   may   equal. 

TV    ™,rQr-,r         I'1"    shall   not    exceed,  one  thousand   live  bun 

covery       ,,,.,,,  ,Vtl,  in  N. „,,,,,  .,llini,  thr  Vl.in  ,„.  !ode . 

Essential.        but    n<>   to*  at  ion    of  a  mining-claim   shall   be 

Width   of        made    until    the    discovery    of    the    vein    or 

PI    •  lode  within  the  limits  of  the  claim   located. 

*"ta   Ins'          No  claim  shall  extend  more  than  three  bun- 

ilr.-d    I'e.-t    on    earh   side  of   the   middle   of   the 

vein   at    the  MM  fare,   nor  shall  any  claim   be  limited  by  any 

mining  regulation  to  less   than    twenty  live  feet  on  each   side 

of   t  "f   the   vein  at   the   surface,  except  where   ad 

M  rights  existing  ou  the  tenth  day  of  May,  eighteen  bun 

dn-il  and  seventy-two,  render  such  limitation  necessary.    The 

end  lines    of   «aeh    claim    shall    be    parallel    to   each    other. — 

Proof  of  Citizenship. 

_'l. — Proof    of    citi/enship.    under    this    chapter. 

may  consist,  in  the  case  of  an  individual,  of  his  own  affidavit 

thereof;   in   tb-  itlon   «.f   p.-rsons   unincor- 

•••d.  of  the  ntlidavit   of   their  authorized  agent,  made  on 

his    ,,wu    knowledge,    or    upon    Information 

Citizenship   of  and  belief;  and  In  the  case  of  a  corporation 

CorDorations     organized    under    the    laws    of    the    United 

ns'    states,  or  of  any  State  or  Territory  thereof, 

by  the  filing  of  a  certified  copy  of  their  charter  or  certificate 

of    incorporation  ft  ,    /,.   jjff. 

Surface — Dip  and  Side  Veins. 

-  The  locator!  of  all  mining  locations  here- 
tofore made  or  which  shall  hereafter  be  made,  on  any  mln 
eral  vein.  lod««.  or  ledge,  situated  on  the  public  domain,  their 
heirs  and  assigns,  where  no  adverse  claim  exists  on  the  tenth 
day  of  May,  eighteen  hundred  and  seventy-two,  so  long  as 


508  TEXT  OF  U.  S.  LAWS  IN  FORCE.         » 

they  comply  with  the  laws  of  the  United  States,  and  wit!) 
State,  territorial,  and  local   regulations  not  in  conflict  with 
the    laws   of   the   United    States   governing   their   possessory 
title,  shall  have  the  exclusive  right  of  possession  and  enjoy- 
ment of  all  the  surface  included  within  the  lines  of  their  lo- 
cations, and  of  all  veins,   lodes,  and  ledges 
Top  or  Apex    throughout   their   entire   depth,   the   top   or 
Controls         apex   of  which   lies  inside  of  such  surface- 
lines     extended     downward     vertically,     al- 
though such  veins,  lodes,  or  ledges  may  so  far  depart  from  a 
perpendicular  in  their  course  downward  as  to  extend  outside 
the  vertical   side-lines  of  such  surface  locations.     But   their 
right  of  possession  to  such   outside  parts  of  such   veins  or 
ledges  shall  be  confined  to  such  portions  thereof  as  lie  be- 
tween vertical  planes  drawn  downward  as  above   described, 
through  the  end-lines  of  their   locations,   so 
Qii  fa  P          continued   in   their  own  direction   that  such 
ourrace.         planes  will  intersect  such  exterior  parts  of 
such  veins  or  ledges.     And  nothing  in  this 
section  shall  authorize  the  locator  or  possessor  of  M   v.  in   or 
lode  which  extends  in  its  downward  course  beyond  the  ver- 
tical lines  of  his  claim  to  enter  upon  the  surface  of  a  claim 
owned   or  possessed   by   another. — Sec.  3,  May  10,  1872. 
l>l>.   I.'>7.  J(>7. 

Tunnels. 

Sec.  2323. — AVh.-n-  a  tunnel  is  run  for  the  develop- 
ment of  a  vein  or  lode,  or  for  the  discovery  of  mines,  tin 
owners  of  such  tunnel  shall  have  the  right  of  possession  of 
all  veins  or  lodes  within  three  thousand  feet  from  th. 
of  such  tunnel  on  the  line  thereof,  not  previously  known 
to  exist,  discovered  in  such  tunnel,  to  the  same  exten 
If  discovered  from  the  surface:  and  locations  on  the  line 
of  such  tunnel  of  veins  or  lodes  not  appearing  on  the  sur 
face,  made  by  other  parties  Mfter  the  commencement  of  the 
tunnel,  and  while  the  same  is  being  prosecuted  with  reas.m 
able  diligence,  shall  lie  invalid:  hut  failure  to  prosecute  tin- 
work  on  the  tunnel  for  six  months  shall  be  considered  as 
an  abandonment  of  the  right  to  all  undiscovered  veins  on 
the  line  of  such  tunnel  N«  ;.  May  10,  1872.  See  p.  fcJ9. 

District  Rules. 

Sec.    2324. — The   miners   of  each    mining-district    may 

make  regulations  not  in  conflict  with  the  laws  of  the  United 

States,  or  with  the  laws  of  the  State  or  Territory  in  which 

the   district   is  situated,   governing  the   location,   manner   pf 

recording,   amount  of  work  necessary  to  hold  possession  of  a 

mining-claim,    subject    to   the   following    i •••• 

Location,        quirements :      The     location     must     be     dis- 

Record.          tinctly   niarked  on   the   ground   so   that   its 

boundaries  can  be  readily   traced.      All    n-<- 

ords  of  mining-claims  hereafter  made  shall  contain  the  name 

or  names  of  the  locators,  the  date  of  the  location,  and  such 

a  description  of  the  claim  or  claims  located  by  reference  to 


TEXT  OF  U.  S.  LAWS  IN  FORCE.  509 

s.»me  natural  object  or  permanent  monument  as  will  identify 
i  he  claim.  On  each  claim  located  after  the  tenth  day  of 

May,  eighteen  hundred  and  seventy-two, 
Annual  and  until  a  patent  has  been  Issued  therefor, 
Labor  not  less  than  one  hundred  dollars'  worth  of 

labor  shall  be  performed  or  improvements 
made  during  each  year.  On  all  claims  located  prior  to  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  ten 
dollars'  worth  of  labor  shall  be  performed  or  improvements 
made  by  the  *  tenth  day  of  June,  eighteen  hundred  and 
seventy-four,  and  each  year  thereafter,  for  each  one  hundred 
feet  in  length  along  the  vein  until  a  patent  has  been  issued 
therefor;  but  where  such  claims  are  held  in  common,  such 
expenditure  may  be  made  upon  any  one  claim  ;  and  upon  a 
failure  to  comply  with  these  conditions,  the  claim  or  niin«- 
upon  which  such  failure  occurred  shall  be  open  to  relocation 
in  the  same  manner  as  if  no  location  of  the  same  had  ever 
!'«••  n  made,  provided  that  the  original  locators,  their  heirs, 
assigns,  or  legal  representatives,  have  not  ivsmmd  work 

upon  the  claim  after  failure  and  before 
Forfeiture  8ucn  location.  Upon  the  failure  of  any 

one  of  several   co-owners  to  contribute   his 

proportion  of  the  expenditures  required 
hereby,  the  co-owners  who  have  performed  the  labor  or  made 
th»-  improvements  may,  at  the  expiration  of  the  year,  give 
such  delinquent  co-owner  personal  notice  in  writing  or  notice 
by  pui .lira ti« in  in  the  newspaper  published  nearest  the  claim, 
for  at  least  once  a  week  for  ninety  days,  and  if  at  the  ex- 
piration of  ninety  days  after  such  notice  in  writing  or  by 
publication  such  delinquent  should  fail  or  refuse  to  con- 
trihute  liis  proportion  of  the  expenditure  required  by  this 
i<>n,  his  interest  in  the  claim  shall  become  the  property 
..t  his  co-owners  who  have  made  th§  required  expenditures. 
— Sec.  5,  Jfoy  10,  Iffft.  Sec  pp.  69,  94,  u 

Amendment  of  1875 — Labor  by  Tunnel. 

That  srrtion  t\v«»  thousand  thiv»-  hundred  and  twenty- 
four  of  the  Revised  Statutes  be,  and  the  same  is  hereby, 
amended  so  that  where  a  person  or  company  has  or  may  run 
a  tunnel  for  the  purposes  of  developing  a  lode  or  lodes'. 
owned  by  said  person  or  company,  the  money  so  expended 
in  said  tunni'l  shall  be  taken  ana  considered  as  expended 
on  said  lode  or  lodes,  whether  located  prior  to  or  since  the 
passage  of  said  act ;  and  such  person  or  company  shall  not 
be  required  to  perform  work  on  the  surface  of  said  lode  or 
lodes  in  order  to  hold  the  same  as  required  by  said  act. — 
//.  1871,  >',//,.  62.  See  p.  257. 

Amendment  of  1880 — Annual  Labor  Period  Fixed. 

That  section  twenty-three  hundred  and  twenty-four  of 
the   Revised  Statutes  of  the   United  States  be   amended   by 

•Instead  of  June  10,   1874,  the  date  ultimately  fixed 
was  January  1,  1875.     See  note,  p.  94. 


610  TEXT  OF  U.  S.  LAWS  IN  FORCE. 

adding  the  following  words :  "Provided,  That  the  period 
within  which  the  work  required  to  be  done  annually  on  all 
unpatented  mineral  claims  shall  commence  on  the  first  day 
of  January  succeeding  the  date  of  location  of  such  claim, 
and  this  section  shall  apply  to  all  claims  located  since  the 
tenth  day  of  May,  anno  Domini  eighteen  hundred  and  sev- 
enty-two."— Sec.  2,  January  22,  1880.  Sup.  276.  See  p.  95. 

Application  For  Patent. 

Sec.  2325. — A  patent  for  any  land  claimed  and  located 
for  valuable  deposits  mny  be  obtained  in  the  following  man- 
ner:    Any  person,   association,  or  corporation  authorized   to 
locate  a  claim  under  this  chapter,  having  claimed  and  located 
a  piece  of  land  for  such  purposes,  who  has,  or  have,  complied 
with  the  terms  of  this  chapter,  may  file  in  the  proper"  land- 
office  an  application  for  a  patent,  under  oath,  showing  such 
compliance,    together    with    a    plat    and    field-notes    of    the 
claim  or  claims  in  common,  made  by  or  under  the  direction 
<>f    the    United    States   surveyor-general,   showing   accurately 
the  boundaries   of  the  claim   or  claims,   which  shall   be  dis 
tinctly    marked    by    monuments    on    the    ground,    and    shall 
post   a   copy   of   such   plat,   together   with   a   notice  of   such 
application  for  a  patent,  in  a  conspicuous  pla< •»•  <>n   the  lanfl 
embraced  in  such  plat  previous  to  the  filing  of  the  applica- 
tion for  a  patent,  and  shall  file  an  affidavit  of  at  least  two 
persons  that  such  notice  has  been  duly  posted.  :m<l  shall   file 
a  copy  of  the  notice  in  such  land-office,  and  shall   thereupon 
be  entitled  to  a  patent  for  the  land,   In  the  manner  follow- 
ing :    The  register  of  the  land-office,  upon   the   filing  of  such 
application,    plat,    field-notes,    notices,    and 
oo  Days         affidavits,   shall   publish  a  notice  that  such 
Publication,     application    has   been   made,   for   the   period 
of  sixty  days,  in  a  newspaper  to  be  by  him 
designated  as  published  nearest  to  such  claim;  and   he  shall 
also  post  such  notice  in  his  office  for  the  same  period.     Th'e 
claimant    at    the   time   of   tiling   this    application,   ot   at    any 
time  thereafter,   within   the  sixty  days  of  publication,   shall 
lile  with   the  register  a  certificate  of  the  United  States  sur- 
veyor-general    that     five     hundred     dollars' 
$500  Improve-  worth   of   labor   has   been   expended   or   im- 
ments  provements  made  upon  the  claim  by  himself 

or  grantors;  that  the  plat  is  correct,  with 
such  further  description  by  such  reference  to  natural  objects 
or   permanent   monuments   as   shall    identify   the  claim,   and 
'  furnish   an  accurate  description,   to   be   incorporated   in    the 
patent.'    At   the   expiration  of  the  sixty   days  of  publication 
the   claimant   shall   file  his   affidavit,   showing   that   the    plat 
and  notice  have  been  posted  in  a  conspicuous  place  on   tho 
claim  during  such  period  of  publication.    If 
Adverse         no  adverse  claim  shall  have  heen  filed  with 
Claim  tue  register  and  the  receiver  of  the  proper 

land-office    at    the    expiration    of    the    sixty 
days   of  publication,   it  shall   be  assumed  that  the   applicant 


TKXT  OF   T.   S.   LAWS   IN   FORCE.  T.ll 

\s   entitled    to   a    patent,    upon    the    payment    to    the    proper 

officer  of  five  dollars  per  acre,  and  that  no 

$5  per  adverse  claim  exists  ;  and  thereafter  no  ob- 

APTP  jection    from    third    parties   to   the   issuance 

of   a    patent    shall  'be    heard,    except    it    be 

shown    that    the    applicant    has    failed   to    comply    with    the 

t.'i-ms    .if    this   chapter.  —  Sec.    6,   May  10,  1872.      N»r    APPI.ICA 

Tln.N  l  .     j>.    $18. 

Application  by  Non-Residents. 

That  section  twenty  three  hundred  and  twenty-five  of 
tin-  I  -;atutes  of  the  United*  States  be  amended  by 

adding  thereto  the  following  words:  "Tnn-iilnl.  That  where 
the  claimant  for  a  patent  is  not  a  resident  of  or  within  the 
land  district  wher.  in  tin-  vein,  lode,  ledge,  or  deposit  sought 
t«i  I'e  patented  is  Un-ated.  the  ajtpl  icat  i«>n  for  patent  and  the 
affidavits  required  to  be  made  in  this  section  by  the  claim 
ant  for  such  patent  may  he  made  by  his.  her.  or  its  author 

agent.  whore  said  agent  is  conversant  with  the  facts 
s.niu'h'  said  affida 

.!»»'/  ;»>•',  n</.  </.  That  this  section  shall  apply  to  all  appli- 
cations now  pending  f»r  patents  to  mineral  lands."  —  S«'  /. 
January  ft,  1880.  8up.  ^ 

Adverse  Claims. 

•Vhere   an  adverse  claim  is  filed  during  the 

p.-riod   of  publication,  it  shall   be  upon   oath  of  the  person 

or    persons    making    the    same,    and   shall    show    the    nature. 

houi!  •  nt  of  such   adverse  claim,   and   all    pro 

:    the   publication  of  notice  and   making   and 

tiling  of   the  affidavit    thereof,  shall  be  stayed   until   the  con- 

Suit   Support-  troversy  shall  have  been  settled  or  decided 

by  a  court  of  competent   iurNdirt  ion.  <>r  the 

ing  in  30        adverse  claim  wralYed,     It  shall  he  the  duty 

Days.  the  adverse  claimant,  within  thirty  days 

after  filing  his   claim,   to  commence  proceedings   in   a   court 

of  competent  Jurisdiction,  to  determine  the  question   of  the 

right  of  possession,  and  prosecute  the  same  with  reasonable 

Proceedings     ''  tln:l1  Judgment;  and   a  failure 

Aftar  BO  to  d°  8naH  be  a  waiver  of  his  adverse 


claim.       After    such    Judgment    shall    have 
Judgment.       »  .....  n   r.-nd.  i-  d.  the  party  entitled  to  the  pos- 
session of   the   claim,   or  any  portion   thereof,  may,   without 
-i\iiiLr  further   notice,   file  a  certified   copy   of  the  Judgment- 
roll    with   the   register  of   the   land-office,   together   with   the 
iticate  of  the  surveyor  general  that  the  requisite  amount 
of   iah«.r   has   U»en  expended  or  Improvements  made   tlnreon. 
and   the  description  required   In  other  cases,  and   shall   pay 
to  the  receiver   five  dollars  per   acre  for  his  claim,   together 
with  the  proper  fees,  whereupon  the  whole  proceedings  and 
the    judgment  roll    shall    he    certified    l.y    the    register    to    the 
<  'oinmissioin  -r  <>i"  the  (Ji-neral  Land-Office,  and  a  patent  shall 
thereon    for   the  claim,   or  such  portion   thereof  as  the 
applicant    shall    appear,   from    the   decision    of   the    court,    to 


512  TETXT  OF  U.  S.  LAWS  IN  FORCE. 

• 

rightly  possess.  If  it  appears  from  the  decision  of  the 
court  that  several  parties  are  entitled  to  separate  and  differ- 
ent portions  of  the  claim,  each  party  may  pay  for  his  por- 
tion of  the  claim,  with  the  proper  fees,  and  file  the  certificate 
and  description  by  the  surveyor-general,  whereupon  the  reg- 
ister shall  certify  the  proceedings  and  judgment-roll  to  the 
Commissioner  of  the  General  Land-Office,  as  in  the  preced- 
ing case,  and  patents  shall  issue  to  the  several  parties  ac- 
cording to  their  respective  rights.  Nothing  herein -contained 
shall  be  construed  to  prevent  the  alienation  of  the  title 
conveyed  by  a  patent  for  a  mining-claim  to  any  person 
whatever.— flee.  7.  .!///.»/  i<>.  />:  ',68. 

Title  in  Neither  Party. 

That  if,  in  any  action  brought  pursuant  to  section 
twenty-three  hundred  and  twenty-six  of. the  Revised  Stat- 
utes, title  to  the  ground  in  controversy  shall  not  !>»•  i-siali 
lished  by  either  party,  tin-  jury  shall  so  find,  and  judgment 
shall  be  entered  according  to  the  verdict.  In  surh  C8M  QOStfl 
shall  not  be  allowed  to  either  party,  and  the  claimant  shall 
not  proceed  in  the  land-office,  or  be  entitled  to  a  patent  for 
the  ground  in  controversy  until  he  shall  have  perfected  bis 
title.-  Mnrrli  .;.  /NX/.  *,<},.  /,.  324. 

Adverse  by  Agent  for  Non-Residents. 

That  the  adverse  claim  required  by  section  twenty 
three  hundred  and  twenty-six  of  the  Revised  Statutes  may 
be  verified  by  the  oath  of  any  duly-authorized  agent  <>r  .it 
torney-in-fact  of  the  adverse  claimant  cognizant  of  the  facts 
stated:  and  the  adverse  claimant.  If  residing  or  at  ;li" 
time  being  beyond  the  limits  of  the  district  wherein  Hu- 
rl aim  is  situated,  may  make  oath  to  the  adverse  claim  tit- 
fore  the  clerk  of  any  court  of  record  of  the  I'nited  Sfates 
or  of  the  State  or  Territory  where  the  adverse  claimant  may 
then  be,  or  before  any  notary  public  of  such  State  or  Ter 
ritory. — Sec.  1,  April  26 f  1882.  Sup.  p.  338. 

Affidavits  Out  of  Land  District. 

That  applicants  for  mineral  patents,  If  residing  be 
yond  the  limits  of  the  district  wherein  the  claim  is  situated, 
may  make  any  oath  or  affidavit  required  for  proof  of  citi 
zenship  before  the  clerk  of  any  court  of  record  or  before  any 
notary  public  of  any  State  or  Territory. — Sec.  2,  Id. 

Survey  Amendment  of  1904. 

*"Sec.  2327. — The  description  of  vein  or  lode  claims 
upon  surveyed  lands  shall  designate  the  location  of  the 
claims  with  reference  to  the  lines  of  the  public  survey. 

Section  2327  Prior  to  Amendment. 

*Sec.  2327. — The  description  of  vein  or  lode  claims, 
upon  surveyed  lands,  shall  designate  the  location  of  the 
claim  with  reference  to  the  lines  of  the  public  surveys,  but 


TEXT  •  •  !•*  IV  S.    I.AXVS  IN  FORCE.  513 

but    need   not   conform   therewith ;    but   where   patents   have 

l-een  or  shall  be  issued  for  claims  upon  unsurveyed  lands. 
~  irveyors-genernl.  in  extending  the  public  survey,  shall 

adjust    the    same    t.i    the    l-niindaries    of    said    patented    claims 

B  t<>  interfi re  with  or  change  the  true  location 

i.-h    claims    as    thcv    are    oflicially    established    upon    the 

•:d.      Where  patents   have  issued   for   mineral    lands,  those 

-    only    shall    I-  .1    and    shall    lie    deemed    to    be 

ubii-h    are    ho-.MHh  d    by    the   lines    actually    marked. 

defined,  and  established   upon    tin-  ground  by   the  monuments 

of   i  he   oiticial    survey   upon  which    the   patent  grant   is   based. 

and    surv.  uiinj:    subsequent     patent     sur 

veys,  whether  upon  surveyed  or  unsurveyed  lands,  shall  be 
••in  d  accni-dini;i\ .  'i  h.-  Miiii  mooomenti  shall  at  all 
I  constitute  ih..  highest  authority  as  to  what  land  is 
ited.  :ind  in  case  of  any  conflict  between  the  said  nionu 

nients    of  such    patented    claims    and    the   description!    of  said 

the    pat. -ins     issued     tlfi-efor     tln»    iiKMiuineii t s    on 

-•round    shall    govern.    :md    erroneous   or    ltx«»>nsisteni    de 

-.  i-ii.t  ions  «.r  rails  in   the  patent  descriptions  shall  give  away 

theret  //  £8,  ./POJ.    33  xt    i 

Previous  Applications. 

Sec.  2328. — Applications  for  patents  for  mining-claims 

under     former    laws     n..\\     peiidin-     may     I.e    prosecuted    to    a 

final   derision  in   the  General  Land-Office;  but   in  such  cases 

wliere   adverse    rights    are    n.-t    affected    thereby,    patents    may 

in    pursuance   ..;    MM-   provisions  of   this  chapter;   and 

Adverse          M"   I''>i''"'s   ''"'•   mining  claims  upon  veins  or 

T?irrfcfo-         lo<le8  heretofore  issued  shall  convey  all  the 

ri-ln-    and    privileges    conf.-rred  by  t  his  chap 

Excepted.       tef  uhere  no  adverse  rights  existed  on  the 

tenth   da\  •  i^'hteen   hundred   and  seventy-two.- 

Placers  Open  to  Entry. 

illy  called  "placers,"  Including 

all   forms  .   or  other   i-,,,  k 

in    place,    shall    !•*•    -  entry    and    patent,    under    like 

circumstances  and  .-..ndit  i"iis.  and  upon  similar  proceedings. 
as  are  provid.  «1  i»r  v.in  ,,r  lode  ••'aims:  but  where  the  lands 
have  ii.-en  previously  rarreyed  by  the  I'uited  States,  the 
entrv  in  or  limits  shall  conform  to  the  legal  sub- 

divisions   of    the    public    lands. — Sec.   It,   July   9,    1870. 
1).  £08.    . 

n-  ed   not   conform    therewith  :    but   where  a   patent   shall   be 
issued    for   <  laiins   i  pmi    unsurveyed  lands,  the  surveyor-gen- 
era! iin^'  the  Mirveys.  shall  adjust  the  same  to  the 
boui  -udi   patented  claim,  according  to  the  plat  or 
riptiou   thereof,  but    so  as   in  no  case   to   interfere  with  or 
•  •ham:.-    the    hx-ation    of    any    such    patented    claim. — Sec.    8, 
10,  187t. 

17 


514       TEXT  OF  U.  S.  LAWS  IN  FORCE. 

Oil  Placer  Act. 

That  any  person  authorized  to  enter  lands  under  the 
mining  laws  of  the  United  States  may  enter  and  obtain 
patent  to  lands  containing  petroleum  or  other  mineral  oils. 
and  chiefly  valuable  therefor,  under  the  provisions  of  the 
laws  relating  to  placer  mineral  claims:  Provided,  That 
lands  containing  such  petroleum  or  other  mineral  oils  which 
have  heretofore  been  filed  upon,  claimed,  or  improved  MS 
mineral,  but  not  yet  patented,  may  be  held  and  patented 
under  the  provisions  of  this  Act  the  same  as  if  such  filing, 
claim,  or  Improvement  were  subsequent  to  the  date  of  tin- 
passage  hereof. — Feb.  11,  1897.  29  St.  L.  526.  $>•••  i>.  .'//. 

Annual   Labor  on  oil   Claims— *M    i>.   II.'. 

Saline  Placer  Act. 

That  all  unoccupied  public  lands  of  the  United  Stairs 
containing  salt  springs,  or  deposits  of  salt  in  any  form,  and 
Chiefly  valuable  therefor,  are  hereby  declared  to  he  subject 
to  location  and  purchase  under  fcbe  provisions  of  the  law 
relating  to  placer-mining  claims:  rmriilftl.  That  the  same 
Person  shall  not  locate  or  enter  more  than  one  claim  here 
under. — Jan.  SI,  1901.  31  8t.  L.  7.}5.  Sec  p.  212. 

Legal  Subdivision  of  Placers. 

2330. — Legal  subdivisions  of  forty  acres  may  be 
subdivided   into   ten-acre   tracts:   and   two  or  more   persons, 
or  associations   of   persons,    having  contiguous   claims   of  any 
sixc.  although   such  claims  may  be  less  than  ten  acres  each, 
may    make  joint    entry    thereof';    but    no   location   of  a    placer- 
claim,    made    after    the    ninth    day    of  July. 
100   Acre       eighteen   hundred  and  seventy,  shall  exceed 
Placers          one   hundred  and   sixty    acres   for   any   one 
person    or    association    of    persons,    which 
location   shall    conform    to   the   United    States   surveys ;   and 
nothing  in  this  section  contained  shall  defeat  or  impair  any 
bona-flde  pre-emption  or  homestead  claim  upon  agricultural 
lands,   or    authorize    the   sale    of   the    improvements    of   any 
bona-flde    settler    to    any    purchaser. — Sec.    12,   July    9,   1870. 
See  p.  209. 

Placers  on  Surveyed  Lands. 

Sec.  2331. — Where  placer  claims  are  upon  surveyed 
lands,  and  conform  to  legal  subdivisions,  no  further  survey 
or  plat  shall  be  required,  and  all  placer-mining  claims  lo- 
cated after  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  shall  conform  as  near  as  practicable  with  the 
United  States  system  of  public-land  surveys,  and  the  rec- 
tangular sub-divisions  of  such  surveys,  and  no  such  location 
shall  include  more  than  twenty  acres  for  each  individual 
claimant :  but  where  placer-claims  cannot  be  conformed  to 
legal  subdivisions,  survey  and  plat  shall  be  made  as  on  un- 
surveyed  lands ;  and  where  by  the  segregation  of  mineral 


TI-;XT  OF  i".  s.  LAWS  IN  FORri:  515 

hind  in  any  le-rnl  suhdivision  a  quantity  of  agricultural 
land  less  than  fort  v  a.  ITS  remains,  such  fractional  portion 
of  agricultural  land  may  In-  entered  hy  any  party  qualified 

hy    law.    for   homestead    «>r    pre-emption    purposes 
limitations. 

:•_'.       Where    such     pers.-n    or    association.    they 

and   their  grantors.    have   held  and    worked   their  claims    for  a 

Period   e.jual    to    tin-    time    pr.  scrihed    l>y    the    statute   of    limi 

r    mining-claim!    of    the    State    or    Territory    where 

the  same  may  be  situated,  evidence  of  stu-h   possession   and 

working  of  the  claims  for  such  period  shall 

T  ift«o  De   sullicient    :o  .stal.lish   a    riirht    to   a    pat- 

tens. ent    ,),,,,.,.,,,    ,,,M|rr    fhis    chapter,    in    the    al>- 

ai'v   adverse  claim  :    hut    nothing  in 

this   chapter   shall    he  deemed    to   impair   any    lien   which  may 
:     in    any    wav     whatever    t..    any    mining-claim 
or   property   then-to  atta-h.  d   prior    to  the  issuance  of  a   pat 

'»////  v.  /s?  .rrs. 


Placer  Claim  Containing  lode. 

IS.-     \Vh.-re    ill,-  .(ssociat  ion.    or 

.:ati..n    is    in    possession    of    a    placer  da  im.    and    also    a 

vein    «,r    lode    included    \\ithin    the    houndaries    tln-r.-of.    appli 

n     shall     I.e     made     f..r    a     |.:iteiit     for     the     placer  claim. 

with    the   statem.-nt    that    it    includes    sm  h    vein    or   lode,   and 

in    siii-h    O  'it    shall    issue    for    the    placer  claim,    sul. 

•o   tin>   pr.ivi-i.ius  of   this    chapter,    including  such    vein 

or   lode,   upon    the   payniriit    of   live   dollars  per  acre    for  such 

vein    or    lode   claim,    and    twenty  live    feet    of   surface    on    ea«  h 

side  thereof.     The  remainder  of  the  placer- 

Placers  $2.50    claim,    or    any    placer  claim    not     emlua.  iim 

Der    Acre         :inv    Vt  '"    "'     1<"|t  '  laini-    shall    be   paid    for 

at     the    rate    of    two    dollars    and    fifty    cents 

her  with  all  costs  of  proceedings;  and  where 

in  or  lode,  such  as  is  described  in  section  twenty  three 

hundred  and  twenty,  is  known  to  exist   within  the  houndaries 

of    a    placer-claim,    an    application    for    n    patent    for    such 

plao-r  claim    which    does    not     include    .-in    application    for    the 

vein  or  lode  claim  shall  he  construed  as  a  conclusive  declara- 

tion   that    the   claimant   of  the  placer  claim    has   no   right   of 

possession  of  the  vein  or  lode  claim:  hut  where  the  existence 

vein  or  lode  in  a  placer-claim   Is  not   known,  n   patent 

for    the    |.!.ic,  i  (  laim   shall   convey   all    valuable   mineral    and 

oth.r  deposits  within  the  boundaries  thereof.  —  8cr.   n.    Mnn 

Deputy  Surveyor  and  Fees. 

Sec.  2334.  —  The  surveyor-general  of  the  United  States 
may  appoint  in  each  land-district  containing  mineral  lands 
as  many  competent  surveyors  as  shall  apply  lor  appointment 
to  survey  mining-claims.  The  expenses  of  the  survey  of 


516  TKXT  OF  U.  S.  LAWS  IN  FORCK. 

vein  or  lode  claims,  and  the  survey  and  subdivision  of  placer- 
claims  into  smaller  quantities  than  one  hundred  and  sixty 
acres,  together  with  the  cost  of  publication  of  notices,  shall 
be  paid  by  the  applicants,  and  they  shall  be  at  liberty  to  ob- 
tain the  same  at  the  most  reasonable  rates,  and  they  shall 
also  be  at  liberty  to  employ  any  United  States  deputy  sur 
_,  ,  veyor  to  make  the  survey.  The  Commis- 

Charges  for  sioner  of  the  General  Land-Office  shall  also 
Publication,  have  power  to  establish  the  maximum 
charges  for  surveys  and  publication  of  no 
tices  under  this  chapter  ;  and,  in  case  of  excessive  charges 
for  publication,  he  ihay  designate  any  newspaper  published 
in  a  land-district  where  mines  are  situated  for  th«>  publi- 
cation of  mining-notices  in  such  district,  and  fix  the  rates 
to  be  charged  by  such  paper;  and,  to  the  end  that  tlio  <'<>m 
missioner  may  be  fully  informed  on  the  subject,  each  appli- 
cant shall  file  with  the  register  a  sworn  statement  of  all 
charges  and  fees  paid  by  such  applicant  for  publication  and 
surveys,  together  with  all  fees  and  money  paid  the  register 
and  receiver  of  the  hind-office.  \\-hirh  statement  shall  be 
transmitted,  with  the  other  papers  in  the  case,  to  the  Com- 
missioner of  the  General  Land-Office. — Sec.  n,  May  10,  l$lt. 
See  p.  400. 

Affidavits  and  Proofs. 

Sec.  2335. — All  affidavits  required  to  he  mad.-  under 
this  chapter  may  be  verified  before  any  officer  authorized  to 
administer  oaths  within  the  land-district  win-re  the  claims 
may  be  situated,  and  all  testimony*  and  proofs  may  in- 
taken  before  any  such  officer,  and.  when  duly  certified  by 
the  officer  taking  the  same,  shall  have  the  same  force  and 

effect   as    if   taken   before   the  register   and 

Agricultural     receiver  of  the  land-office.     In  cases  of  c->n 

Contest          test  as  to  the  mineral  or  agricultural  < -bar 

acter  of  land,  the  testimony  and  proofs 
may  be  taken  as  herein  provided  on  personal  notice  of  at 
least  ten  days  to  the  opposing  party  :  or  if  such  party  can- 
not be  found,  then  by  publication  of  at  least  onco  a'  week 
for  thirty  days  in  a  newspaper,  to  he  designated  by  the 
ister  of  the  land-office  as  published  nearest  to  the  location 
of  such  land  ;  and  the  register  shall  require  proof  that  such 
notice  has  been  given. — Sec.  13,  .!/<///  in.  /NT*  SIT  />.  1,01. 

Cross  Veins. 

Sec.    2336. — Where    two    or    more    veins    intersect    or 
cross   each   other,   priority    of    title   shall    govern,   and    such 
prior   location  shall   be   entitled   to  all   ore  or   mineral    con- 
tained within  the  space  of  intersection  ;   but   the  subsequent 
location  shall  have  the  right  of  way  through 
Veins  Uniting  the  space  of   intersection   for  the  purposes 
on  the  DiD      °*    tne    conveni^nt    working    of    the    mine. 
And    where    two   or    more   veins   unite,    the 
oldest  or  prior  location  shall  take  the  vein  below  the  point 
of   union,    including  all   the   space  of   intersection. — Sec.   Ik, 
May  10,  1872.     See  pp.  150,  I5f 


ri:\T  OF  u.  s.  LAWS  ix  FORCE.  51? 


Mill  Sites. 

7  NYheiv  non-mineral  land  n«»t  contiguous  to 
tin*  vein  or  lode  is  used  or  occupied  l»y  i  lit-  proprietor  of 
such  vein  in-  lode  for  mining  or  milling  purposes,  such 
lion  adjacent  surface-ground  may  he  embraced  and  included 
in  an  application  for  a  patent  for  such  vein  or  lode,  and 
-a  me  may  le  patented  therewith,  subject  to  the  sanif- 
preliminary  requirements  Bfl  in  survey  and  notice  as  are 
applicable  i-  lodes:  but  no  location  hereafter  made 

oi   Mich    n«n  ;id.ia.  •  nt    land   shall    exceed    live  acres,   and  pay- 
ment   for    i  he   K  I.e   made  at    the   same    rate  as   fixed 
by    tliis    chapter    for    the   superiiei.  s   .»f    the    lode.      The    owner 
of   a    quart/,  mill    or    reduci  ion  u  ..rks.    not    owning   a    mine    in 
connection  th»-n-\\  it  h.  mav   also   receive  :i   intent    for  his  mill- 
ded     in     this    section.  .I/*;//    10,    1872. 
fty. 

Easements. 

:s. — AB  a  condition  of  saie,  in  the  absence  of 
necessary    legislation    by    •  the    local    legislature   of 

any   State  or  Territory  m:iy  pr  i  for  working  mines, 

involving  easements,  drainage,  and  other  necessary  means 
to  their  complete  d>  vel«  .pmeii  t .  and  those  conditions  shall  be 
fully  expressed  in  the  patent.  Bee.  :>.  ./«//•/  .'»;.  /x»w.  8cc 
I..  Nt, 

Water  Rights — Appropriation. 

rer,  l-y  pHoritJ    of  possession.  riurht> 

t,.   the   us-  f..r   mining,    aurieiiit  ural.    manufacturing. 

or  other  purpo  n«  d.   and    the   same 

are  ree..;:ni/rd  :ind  :i«  kn..\\  !-  d.u'»  d  l>\  the  loeal  customs,  laws, 
and  the  decisions  .  asid  «>\\  tiers'  of 

sucii  vested  rights  shall  !.••  maintained  and  protected  in  the 
same;  an  :  »r  t  lie  const  ruct  ion  <»f  di- 

and  canals  for  the  p  1  ii  acknowledged 

ami    continued:    l.ir  :i.    in    the    construc- 

tion of  any  ditch  .«r  canal,  in  inn  >  OF  daiuages  the  posses- 
sion of  any  settler  on  the  puhlic  domain,  the  party  commit- 
iin-  M-V  or  dam.-iue  ^haii  be  liahie  to  the  party 

injured    for    such    injury    «.r    damage. — Sec.    9,   Jvlfi   *6,    1866. 
193. 

Patents  Subject  to  Water  Easements. 

Sec.  2340. — All  patents  -.'ranted,  or  preemption  or 
homesteads  allowed,  shall  le  suhje-'t  to  any  vested  and  ;i< 
•  rued  water-right,  or  rights  to  ditches  and  reservoirs  used 
in  connection  with  such  water  rights,  as  may  have  been  ac- 
quired under  or  reco-ni/ed  l,y  the  preceding  section. — Sec. 
/«!«  .-'.  ISffO,  See.  i'.  19S. 


518  TEXT  OF  U.  S.  LAWS  IN  FORCE. 

Homesteads. 

Sec.  2341. — Wherever,  upon  lands  heretofore  desig- 
nated as  mineral  lands,  which  have  been  excluded  from  sur- 
vey and  sale,  there  have  been  homesteads  made  by  citizens 
of  the  United  States,  or  persons  who  have  declared  their 
intention  to  become  citizens,  which  homesteads  have  been 
made,  improved,  and  used  for  agricultural  purposes,  and 
upon  which  there  have  been  no  valuable  mines  of  gold,  sil- 
ver, cinnabar,  or  copper  discovered,  and  which  are  properly 
agricultural  lands,  the  settlers  or  owners  of  such  home- 
steads shall  have  a  right  of  pre-emption  thereto,  and  shall 
be  entitled  to  purchase  the  same  at  the  price  of  one  dollar 
and  twenty-five  cents  ner  acre,  and  in  quantity  not  t<» 
exceed  one  hundred  and  sixty  acres ;  or  they  may  avail 
themselves  of  the  provisions  of  chapter  five  of  this  Title, 
relating  to  "HOMMTBAD8." — Sec.  10,  July  £6,  1866. 

Segregation  of  Agricultural  Lands. 

Sec.  2342. — T'pon  the  survey  of  the  lands  described  in 
the  preceding  section,  the  Secretary  of  the  Interior  may 
designate  and  set  apart  such  portions  oi  the  same  as  are 
dearly  agricultural  lands,  which  lands  shall  t  hereal't  er  he 
subject  to  piv -emption  and  sale  as  other  public  lands,  and 
be  subject  to  all  the  laws  and  regulations  applicable  to  the 
same. — 8cc.  11,  July  26,  1S66. 

Land  Districts. 

Sec.  2343. — The  president  is  authori/.od  to  establish 
additional  land-districts,  and  to  appoint  the  necessary  offi- 
cers under  existing  laws,  wherever  he  may  deem  the  same 
neeessarv  for  the  public  convenience  in  executing  the  pp.. 
visions  of  this  chapter. — Sec.  1,  July  £6,  1866. 


Vested  Rights. 


Sec.   2344. — Saving   < Manse   as    to    Sulro   Tunnel    A't. 
Sec.  2345. — Excepts  Michigan,   Wisconsin  and  Minne- 
sota.* 

State  and  Railroad  Grants. 

Sec.  2346. — No  act  passed  at  the  first  session  of  the 
Thirty-eighth  Congress,  granting  lands  to  States  or  corpora 
tions  to  aid  in  the  construction  of  roads  or  for  other  pur- 
poses, or  to  extend  the  time  of  grants  made  prior  to  the 
thirtieth  day  of  January,  eighteen  hundred  and  sixty  live. 
shall  be  so  construed  as  to  embrace  mineral  lands,  which 
in  all  cases  are  reserved  exclusively  to  the  United  States, 
unless  otherwise  specially  provided  in  the  act  or  acts  mak- 
ing the  grants. — Res.  A7o.  10,  January  SO,  1865. 

*By  A'ct  of  May  5.  1876,  Sup.  104.  Missouri  and 
Kansas  are  excepted  from  ttie  operation  of  the  Mining  Act. 
By  Act  of  March  3,  1883,  Sup.  Wk,  Alabama  is  excepted. 


COAL   LANDS. 

Rights  of  Canadians  in  Alaska. 

Sec.    13. — That  native-born   citizens   of  the   Dominion 

mada    shall    he    accorded    in    said    District   of   Alaska   the 
mining    rights    and    privileges    accorded    to    citizens    of 
ilu>    ITnited    suites    in    p.ritish    Columbia    and    the   Northwest 
Territory    hy    the    laws   of  the    Dominion    of   Canada    or   the 
local    laws,    rules,    anil    regulations;    but    no    greater    rights 
shall   he   thus  accorded    than  riti/ens   of   the    1'nited  States  or 
•us   who    1;;  >d    their   intention    to   become   such 

may   enjoy   in   said    District    of   Alaska:   and   the  Secretary  of 
the    Interior   shall    from    time   to   time,    promulgate   and   en- 
force   rules    and     regulations    to    curry     this     provision     into 
ay    I*,,    1898.     SO    St.     I..     }/:..      NT    Kith- 
404. 

By  act  of  May  21,  189G,  the  right  of  way  for  oil 
lines  in  Colorado  and  Wyoming  is  grant*-  I 
When  a  military  reservation  is  vacated  the  min- 
eral lands  become  part  of  the  public  domain. — A.  C. 
.Tuly  5,  1884,  Sup.  455. 


COAL  LANDS. 


Legal  Subdivisions. 

person  above  the  age  of  twenty  one 

Of    the     Tinted     Btate0,     OF    who    has 

declared  his  intention  t<>  I  ecome  such,  or  any  association 
of  persons  severally  i  as  above,  shall,  upon  applica- 

tion   to  t!  ..f   ili.-   t. roper   land  oilice.   have   the   right 

to   n  quantity    of   vacant    coal 

lands   .if   the   I'nited   State*    not    otherwise  appropriated   or 

reservd     i\     competent     authority,     not    ex 
160   Or   320       ceedhiK    one    hundred    and  sixty  acres  to  such 
Acres  $10   tO     individual     person,    or     three     hundred     and 
*  Arro     lw''  to  mich  association,   upon  pay 

*2°  Per  Acre'  ment  to  ihe  receiver  of  not  less  than  ten 
dollars  per  acre  for  sin -h  land,  when-  the  same  shall  l>e 
situated  more  than  fifteen  miles  from  any  completed  rail- 
road, and  not  Ie0a  than  twenty  dollars  per  ncre  for  such 
lands  as  shall  be  within  fifteen  miles  of  such  road. — H«:  I. 
Mnn-h  •'.  : 

Settlers  Preferred. 

18,      Any   person    ,,r  association    of   person- 

ernlly  qualified,  a^  ahove  provided,  who  have  opened  and 
Improved  or  shall  hereafter  open  and  improve,  any  coal 
mine  or  mines  upon  the  public  lands,  and  shall  be  in  actual 


520  COAL,  LANDS. 

possession  of  the  same,  shall  be  entitled  to  a  preference- 
right  of  entry,  under  the  preceding  section,  of  the  mines  so 

opened  and  improved  :  Provided,  That  when 

640   Acre        any  association   of  not  less  than  four  per- 

Tracts  sons,   severally  qualified  as  above  provided. 

shall  have  expended  not  less  than  five  thou- 
sand dollars  in  working  and  improving  any  such  inim>  or 
mines,  such  association  may  enter  not  exceeding  six  hun- 
dred and  forty  acres,  including  such  mining  improvements. 
— Sec.  Z,  Id. 

Land  Office  Proceedings. 

Sec.  2349. — All  claims  under  the  preceding  section 
must  be  presented  to  the  register  of  the  proper  land-district 
within  sixty  days  after  the  date  of  actual  possession  and 
the  commencement  of  improvements  on  the  land,  by  the  filing 
of  a  declaratory  statement  therefor  ;  but  when  the  township 
plat  is  not  on  file  at  the  date  of  such  improvement .  filing 
must  be  made  within  sixty  days  from  the  receipt  of  such 
plat  at  the  district  office:  and  where  the  improvements  shall 
have  been  made  prior  to  the  expiration  of  three  months 
from  the  third  day  of  March,  eighteen  hundred  and  seventy- 
three,  sixty  days  from  the  expiration  of  such  three  months 
shall  be  allowed  for  the  filing  of  a  declaratory  statement, 
and  no  sale  under  the  provisions  of  this  section  shall  be 
allowed  until  the  expiration  of  six  months  from  the  third 
day  of  March,  eighteen  hundred  and  seventy-three.- 
.;.  'hi. 


Entry  Limited. 


Sec.  L'::r»o.-  The  ihn-e  preceding  sections  shaH  he  held 
to  authorize  only  on.-  entry  by  the  same  per  ..cia 

tion  of  persons  :  and  no  association  of  persons  any  member 
of  which  shall  have  taken  the  benefit  of  such  sections,  either 
as  an  individual  or  as  a  member  of  any  other  association. 
shall  enter  or  hold  any  other  lands  ander  the  provisions 
thereof:  and  no  member  of  any  association  which  shall  have 
taken  the  benefit  of  such  sections  shall  enter  or  hold  .-my 
other  lands  under  their  provisions:  and  all  persons  claim 
ing  under  section  twenty-three  hundred  and  forty-eight  shall 
be  required  to  prove  their* respective  rights  and  pay  for  the 
lands  filed  upon  within  one  year  from  the  time  prescribed 
for  filing  their  respective  claims:  and  upon  failure  to  file 
the  proper  notice,  or  to  pay  for  the  land  within  the  re- 
quired period,  the  same  shall  be  subject  to  entry  by  any 
other  qualified  applicant. — Sec.  ',,  Id. 

Conflicting  Claims. 

Sec.  2351. — In  case  of  conflicting  claims  upon  coal- 
lands  where  the  improvements  shall  be  commenced,  after 
the  third  day  of  March,  eighteen  hundred  and  seventy-three. 

Eriority  of  possession  and  improvement,  followed  by  propel- 
ling and  continued  good  faith,  shall  determine  the  prefer- 


Ti.MMKli   AN1>  S'M  'NK   A'   T 

ritrht    to  purchase.      And  also  where  improvements    have 

••••11  made  prior  to  the  third  day  of   March.  eighteen 

hundred  and  seventy  three.  division  of  t  he   land  claimed  may 

be    math'    by    lri:al    subdivisions,    it.    include.    ;is    n.>ar   as    may 

the    valuabN'    improvements    of    the    respective    parties. 

The   rommissiom-r   of   the   General    Land-Office   is  authorized 

Mie  all    needful   rules   and   regulations    for   carrying  into 

the  provisions  of  this  and  the  four  preceding  sections. 

—  Srr.    .',.   1,1. 

Vested  Rights  —  Lodes  and  Placers  Excepted. 


Nothing    in     the    live    preceding    sections 

shall  be  construed  to  destroy  or  impair  any  rights  which 
may  have  attached  prim-  to  the  third  day  of  March,  eighteen 
hundred  and  sevnuy  Mm  e.  or  to  :iuthori/e  the  sale  of  lands 
valuable  for  mines  of  gold,  silver,  or  copper.  —  Sec.  <;,  l<l. 

The   proceedings  to  enter  coal   lands  under  the 

above  sections  are  regulated  by  Circulars  of  the  Gen- 

enl   Land  Office  of  April  12  and  24,  1907.—  35  L.  D. 

681.     A.  special  survey  of  township  containing 

coal  lands  is  provided  for  by  28  St.  L.  423. 

The  provisions  of  the  Act  extended  to  Alaska,  31 
Bt  L.  658. 


TIMBER  AND  STONE  ACT. 


Lands  Chiefly  Valuable  for  Timber  or  Stone. 

That     surveyed     public     lands     of     the     Tinted     States 
within    the  /M//./I.-   /  not    included   within    military, 

Indian,  or  other  ri->rrv:it  ioiis  of  the  Itiit.'d  States,  valuable 
(  hietly  for  timber,  but  unfit  for  cultivation,  and  which  have 
not  •  '1  at  public  sale  according  to  law,  may  be  sold 

bave   '!•• 

(hired   their   intention  to  become  such,   In  quantities  not  ex- 
ing  one  hundred  and  sixty  acres  to  any   one  person   or 
n  of  persons,  at  the  minimum   price  of  two  dollars 
and  fifty  -  tcre  :  and  lands  valuable  chietly  for  stone 

may  he  sold  on   the  same  terms  as  timber  lands. 

Mining  Claims  Excepted. 

'.  That  nothing  herein  contained  shall  defeat 
or  impair  any  bona-flde  claim  under  any  law  of  the  United 
states,  or  authorize  the  sale  of  anv  mining  claim,  or  the 
improvements  of  any  bona-fide  settler,  or  lands  containing 
gold,  silver,  cinnabar,  copper,  or  coal,  or  lands  selected  by 
the  said  States  under  any  law  of  the  United  States  donating 
lands  for  internal  improvements,  education,  or  other  pur- 
poses. (A  further  proviso  follows  sTiving  ditch  and  water 
rights.) 


522  TIMBER  AND  STONE  ACT. 

Duplicate  Statements  Required. 

Sec.  2. — That  any  person  <I<  siring  to  avail  himself  of 
the  provisions  of  this  act  shall  file  with  the  register  of  the 
proper  district  a  written  statement  in  duplicate,  one  of 
which  is  to  be  transmitted  to  the  General  Land  Office,  desig- 
nating by  legal  subdivisions  the  particular  tract  of  land  li«' 
desires  to  purchase,  setting  forth  that  the  same  is  unfit  f«»r 
cultivation,  and  valuable  chiefly  for  its  timber  <>r  stone; 
that  it  is  uninhabited  ;  contains  no  mining  or  other  improve- 
ments, except  for  ditch  or  canal  purp«»s.  s.  \vhen>  any  such 
do  exist,  save  such  as  were  made  by  or  belong  to  the  appli- 
cant, nor,  as  deponent  verily  believes,  any  valuable  deposit 
of  gold,  silver,  cinnabar,  copper,  or  coal  ;  that  deponent  bus 
made  no  other  application  under  this  act  :  that  he  does  not 
apply  to  purchase  the  same  on  speculation,  but  in  good 
faith  to  appropriate  it  to  his  own  exclusive  use  and  bent-tit  : 
and  that  he  has  not,  directly  or  indirectly,  made  any  a.un ••• 
inent  or  contract,  in  any  \vay  or  manner,  with  any  person 
or  persons  whatsoever,  by  which  the  title  which  he  might 
acquire  from  the  Government  of  the  United  States  should 
inure,  in  whole  or  in  part,  to  the  benefit  of  any  person 
except  himself:  which  statement  must  be  verified  by  the 
oath  of  the  applicant  before  the  register  or  the  receiver 
of  the  land-office  within  the  district  where  the  land  is 
situated.* 

Sale  to  Bona  Fide  Purchaser. 

And  if  any  person  taking  such  oath  shall  swear 
falsely  in  the  premises,  he  shall  be  subject  to  all  the  pains 
and  penalties  of  perjury,  and  shall  forfeit  the  money  which 
he  may  have  paid  for  said  lands,  and  all  right  and  title  to 
the  same;  and  any  grant  or  conveyance  which  he  may  have 
made,  except  in  the  hands  of  bona-fide  purchasers,  shall  be 
null  and  void. 


Publication  and  Posting. 


Sec.  3. — That  upon  the  filing  of  said  si  at  emeu 
provided  in  the  second  section  of  this  art.  the  register  of 
the  land  office,  shall  post  a  notice  of  such  application,  em- 
bracing a  description  of  the  land  by  legal  subdivisions,  in 
his  office,  for  a  period  of  sixty  days',  and  shall  furnish  the 
applicant  a  copy  of  the  same  for  publication,  at  the  expense 
of  such  applicant,  in  a  newspaper  published  nearest  the  lo- 
cation of  the  premises,  for  a  like  period  of  time  ;  and  after 
the  expiration  of  said  sixty  days,  if  no  adverse  claim  shall 
have  been  filed,  the  person  'desiring  to  purchase  shall  furnish 
to  the  register  of  the  land-office  satisfactory  evidence,  first, 
that  said  notice  of  the  application  prepared  by  the  register 
as  aforesaid  was  duly  published  in  a  newspaper  as  herein 

*An  Act  of  1904,  33  St.  L.  59,  makes  special  pro- 
vision for  verification  of  the  forms  under  the  Act  and 
making  proofs  outside  the  Land  District. 


TIMBER  AND  STONE  ACT. 

required:  secondly,  that  the  land  is  of  the  character  con- 
templated in  this  art.  unoccupied  :uul  without  improvements, 

oth«>r  than  th<>sc  exeepted.  cither  mining  or  agricultural,  and 
that  it  apparently  contains  no  rateable  deposits  of  gold, 
silver,  cinnabar,  copper,  or  coal:  and  upon  payment  to  the 
l'io]M-i  officer  of  the  purchase-money  of  said  land,  together 
with  the  fees  of  the  register  and  the  receiver,  as  provided 
for  in  case  of  mining  claims  in  the  twelfth  section  of  the 
act  approved  May  tenth,  eighteen  hundred  and  seventy  two. 
the  applicant  may  he  permitted  to  enter  said  tract,  and.  on 
tin-  transmission  to  the  General  Land  nthce  of  the  papers 
and  testimony  in  the  ease,  a  patent  shall  issue  thereon. 

Protest  and  Appeal. 

.   That   any   person   having  a   valid   claim    to 

any  portion  ol  the  land  may  oi.jeet.  in  writing,  to  the 
issuance  of  a  patent  to  lands  so  held  by  him.  stating  the 
nature  of  his  claim  thereto;  and  evidence  shall  be  taken. 
and  the  merits  of  said  objection  shall  he  determined  l>\  the 
officers  of  the  land-office,  subject  to  appeal,  as  in  other  land 

•      for 


cases.      Effect   shall    In-    iriv.-n    to    ihe    i'Mr.--«>inur    provisions    of 
this  act  by  regulations  t- 
of  the  General   Land  Office. 


this  act  by  regulations  to  be  prescribed  by  the  Commissioner 
•    '      -     era!  L 


The  original  Act  was  routined  to  certain  States, 
and  the  above  Act  is  the  law  as  it  now   reads  ex- 
tended to  all  "Public  Land"  States.—/  Sup.  /6'7 . 
Sup.  65.     See  p.  213.     Unsurveyed   lands  cannot  be 
entered  under  this  Act. 

The  entire  procedure  consists  of  (1)  filing 
duplicate  statements  as  prescribed  by  the  second 
section  above  printed;  (2)  advertisement  and  posting 
for  sixty  <hivs  as  required  by  the  third  section,  and, 
(3),  at  the  completion  of  the  sixty  days  file  the  proof 
of  publication  and  make  proof  by  two  witnesses, 
who  appear  in  person  at  the  Land  Office,  that  the 
land  is  of  the  character  in  detail  as  described  in  the 
above  first  section — whereupon  immediately  follow 
payment  and  entry. 

The  meaning  of  the  phrase  in  section  2  "That 
he  does  not  apply  to  purchase  the  same  on  specula- 
tion," is  construed  in  U.  S.  v.  Budd.  144  U.  S.  154; 
U.  S.  v.  Detroit  L.  Co.  200  U.  S.  521;  Hawley  v.  Diller, 
178  U.  8.  476. 

An  entry  made   in  good   faith,  though  with  the 
expectation  of  profiting  by  a  sale  of  the  land,  is  not 
tMiilation." — 32  L.  D.  349. 


524  TIMBER  ACT. 

The  purchase  money  may  be  borrowed  and  se- 
cured by  mortgage  on  the  land. — 34  L.  D.  133.  But 
no  mortgage  or  conveyance  should  be  made  before 
entry  and  payment  as  the  Department  may  require 
a  non-alienation  affidavit  at  any  time  before  receiver's 
receipt  issues. 

In  a  contest  betwen  a  timber  entry  and  an  agri- 
cultural claim  the  former  must  show  that  the  land, 
as  a  whole,  is  substantially  unfit  for  cultivation. — 
35  L.  D.  498. 

The  fact  that  the  land  will  be  fit  for  cultivation 
after  the  timber  is  removed  does  not  exclude  it  from 
entry  under. the  timber  act. — U.  S.  v.  Budd,  144  U.  8. 
154;  Thayer  v.  Spratt,  189  U.  8.  .}',<'>. 

Failure  of  the  applicant  to  personally  examine 
the  land  sought  to  be  entered,  is  fatal  to  the  appli- 
cation.— 32  L.  D.  606,  631. 


TIMBER  ACT. 


Timber  Free  to  Miners. 

That  nil  citizens  of  the  Ini  :m<l   ..HUT   pri- 

sons, bona  fide  residents  <>i   tin-  State  of  Colorado,  or  .\Yvada. 
or  either  of  the  Territories  of  New   Mexico,    Ari/.ona.    it.-ih. 
Wyoming,  Dakota,  Idaho,  or   .Montana,  and   all  other  mil 
districts    of    the    I'nited    States,  shall    IM-.   and   an-    heivhy.   an 
thorfaed    and     permitted    to    fell    and    remove,     for    l»ui:>! 
agricultural,    mining,    or    other    domestic    purpos.--.    any    tiin 
ber  or  other  trees  growing  or  being  on  the  public  lands,  said 
lands  being  mineral,  and  not   subject    to  entry  nnder  existing 
laws     of     the     Tnited    States,    except     ior    mineral     entry,     in 
eiiher  of  said    States.   Territories,   or  districts  of   which' such 
citi/.ens   or    persons  may   be  at   the   time  6ona-fide   residents. 
subject    to   such   rules   and   regulations   as   the   Secretary   of 
the  Interior  may  prescribe  for  the  protection  of  the   timber 
and  of  the  undergrowth  growing  upon  such   lands,  and   for 
other   purposes:    rr<>ri<h  <l,   the  provisions   of   this   act   shall 
not    extend    to   railroad    corporations. — June   3,   1878.      Svp. 
p.  166. 

The  above  is  the  Act  now  in  force.  The  Acts  of 
1871  and  1873,  26  St.  L.  1093;  21  Id.  //.'///,  are  a  repeti- 
tion of  its  provisions  as  to  certain  States  and  terri- 
tories. The  Acts  are  construed  by  circulars  found 
in  29  L.  D.  571,  572. 


T1MBKK   A.  IT,  f>L'f. 

These  circulars  contain  the  "regulations"  men- 
tioned in  the  act  which  are  material,  because  the  bur- 
den of  proof  is  on  the  timber  cutter  to  show  coin 
pliance  with  them.— U.  8.  v.  Basic  Co.  121  F.  504. 
The  same  case  gives  a  liberal  construction  to  the 
term  "mineral  lands." 

Under  the  Act  above  printed  timber  may  be  cut 

on  mineral  lands  for  purposes  of  sale  or  for  roasting 

ores — nor  can   the   Secretary   by    regulation    prohibit 

cutting   for   such    purposes. — U.    S.   v.   Rossi,    133    F. 

V.  8.  v.  Unit*  Co.  196  U.  8. 

Using  timber  for  smelting  purposes  is  within  the 
terms  of  the  Act  of  1891.— 34  L.  D.  7S.  Also  for  con- 
structing electric  light  plants,  bridges  and  flumes  by 
city  or  county. — Id.  1 1  i. 

•of  of  panning  colors  is  not  enough  to  prove 
that  the  land  is  mineral  so  as  to  justify  timber  cut- 
ting.— Anderson  v.  U.  8.  152  F.  87.  A  purchaser  of 
timber  cut  by  trespass  cannot  defend  on  his  good 
faith.  He  cannot  have  a  better  title  than  his  vendor. 
— Id. 

See  Building  Stone  Act.  p. 

Alaska. 

Section  11.  Act  of  1898.  30  N/.  /,.   j/j.  allows  free 
nib.  i   to  miners  in  Ala- 


526  GLOSSARY  MINING  TETIMS. 


GLOSSARY  OF  MINING  TERMS. 


ACEQUIA.     A   ditch.     Spanish. 

ADIT.  A  horizontal  drift  or  other  passage  used  as  an 
opening  or  drain  to  a  mine ;  applied  to  no  level  except  one 
opening  on  the  surface.  Latin. 

ADVENTURER.     A    shareholder. 

ALLUVIUM.  The  sediment  of  streams  and  floods. 
Latin. 

AMALGAM.  The  mechanical  combination  of  quicksilver 
with  gold  or  silver. . 

ANDESITE.  A  dark  porphyrftic  lava,  composed  of  black 
crystals  imbedded  in  a  mass  of  light  colored  feldspar.  A  \ 
i'i:sin:  r.KKcn.v.  Fragmental  andesite  united  into  a  coin 
pact  rock  by  silica  and  other  natural  cementing  materials. 
The  main  eruptive  rock  of  the  Cripple  Creek  district. 
AXDESITE  TUFF.  Andesite  in  mtnute  fragments,  finer  than 
breccia.  John  We1lhi</t<»i  rinrh. 

Ari:x.      The   top  of  a  lode.     Latin. 

ARASTRA.  A  circular  mill  for  grinding  quartz  by  tritu- 
ration  between  stones  attached  loosely  to  cross  arms. 

N/H////.V//. 

ARCH.  A  part  of  the  gangue  left  standing  for  sup- 
port. 

ARGENTIFEROUS.      Silver  bearing.     Latin. 

Asri:ssit.N  Tin:iiRY.  That  referring  the  filling  of  fis- 
sures to  matter  from  below.  \  »n  Cotta,  11. 

ASPHALT.  A  solid  form  of  native  bitumen,  which 
occurs  more  or  less  pure,  or  mixed  with  inorganic  or  other 
adventitious  non -bituminous  matter.  Tin-  name  is  also  ap 
plied,  commercially  and  in  engineering  parlance,  to  mat«- 
rials  in  general  containing  this  form  of  native  bitumen  or 
any  form  resembling  it.  See  BITUMEN.  C.  ().  />'</.//<  / 

ASSAY.  A  test  of  the  mineral  contained  in  a  larger 
mass  by  extracting  and  weighing  the  product  of  a  sample. 
ft  •  i>.  376. 

ASSESSMENT  WORK.  The  annual  labor  ($100)  re- 
quired to  hold  a  claim.  See  p.  94. 

AURIFEROUS.     Gold  bearing.     Latin. 

BACK.     The  roof  of  a  drift,  stope  or  other  working. 

BAL.     A   mine.     Cornish. 

BANK.     The  surface  at  the  pit's  mouth. 

BANKET.  Term  applied  to  the  ore  of  the  Rand 
Reefs. 

BANKSMAN.  The  man  at  the  shaft-mouth  who  han- 
dles the  bucket.  Cornish. 

BAR   DIGGINGS.      Gold   washing   on    river    bars. 

BARRIERS.  Masses  of  unworked  gangue  or  coal  left 
to  prevent  drainage  from  mine  to  mine. 


GLOSSARY  MINING  TERMS.  527 

r.  VSB    BULLION.      Pig    lead    containing    its    gold    and 
;    unseparated. 

i:\sr    METALS.     All   metals  except  gold,   silver,   mer- 
nnd    the    platinum    group,    which    are    termed     m.hle 
metals. 

BED.     A   horizontal  seam  or  deposit  of  ore. 
BKI-  The   solid   rock   outcropping   at    sunn.. 

or  underlying  the  gravel,  slide  or  other  loose  earth. 

IMUTH.      A    brittle   crystalline  grayish    white   metal 

easily  fusible.     Found  as  an  oxide  or  sulphide   in   <>ivs 

of   K  .    copper  and   other  metals.      Not    usually   <lis 

tintiuishable    except    by    assay.      As    distributed    with    such 

-   no   commercial    value   unless   of   high    percent  a -<• 

>k  I/.   Taylor. 

BITUMEN   consists   of  a  mixture   of  native    hydnu-ar 
and    their    d.-rivat  i\  •  •-.    which    may    be   gaseous.'    liquid, 
a    viscous    liquid   or   a   solid,   but,   if  a   solid,   melting    ni"i« 
or    i.vS    readily   on   the  application   of  heat,   and   soluble    in 
turpentine,    chloroform,    bisulphide    of    carbon,    similar    sol- 
-  nnd  in  the  malthas  or  heavy  asphaltic  oils.     Natural 
gas.   petroleum,    maltha.    asphalTT  grahamite,   gllsonlte. 
kerlte,  etc.,  are  bitumens.     See  Asm. MI 

BLACK  JACK.     A  dark  variety  of  zink  blende. 
BLENDE.     A  sulphide  of  zink. 

BLOSSOM.     Decomposed  out-crop  of  a  vein.     Gossan. 
Iron 

BLOW-OUT.      A   spreading   out-crop. 
BON  itr  weather  at  sea;  a  large  body  of  pay 

ing  ore.  Became  a  familiar  t«>rm  upon  the  opening  of  the 
immense  ore  bodies  in  the  Comstock.  Sp. 

M     I  ML  ii.       The     ditch     from     the     dam     used     in 

booming.     (2)     A  slight  channel  cut  down  a  declivity  into 

let    a    sudden   head   of   water    intended    to    mi    to 

bed-rock  and  prospect  for  the  apex  of  any  underlying   !<>de 

•  MING.     A  kind  of  placer  mining  where  the  water 

is  accumulated    in    a    dam    and    let    ont    at    intervals,    so   as    ».. 

•  •uttiiitf   pow.-r   in    the    form   of  a   torrent. 
BORRASCA.     The  reverse  of  Bonanza.     Out  of  pay 
BOULDER.     A  large,  loose,  rounded  stone. 

TICE.      A    bulkhead. 

I:AST.     The   heading   of   a   drift,    tunnel,    or   other 
horizontal   working. 

BRECCIA.     A  conglomerate   of  angular   fragments. 

Stephanite.      A    sulphide    of    ami 

mony  and  silver  containing  68.5  per  cent,  silver  with  the 
antimony  variable.  Sometimes  contains  iron,  copper  and 
arsenic ;  variable  in  color,  hardness  and  specific  gravity. 
/:.  /: 

BROACHING.     Trimming   or   straightening   a   working. 
BRON/K.      An  alloy  of  copper   and  tin.     Brass   is  an 
alloy   of   copper  and    /ink. 

BrDDLiNG.     Separating  ores   by   washing. 
BULLION.     Uncoined  gold  or  silver. 


528  GLOSSARY  MINING  TKRMS. 

CACHE.  A  place  where  a  prospector's  provisions  or 
outfit  is  buried  or  hidden.  French. 

CALAMINE.      An   ore  of  zink.     Lapis   CalmtihmriK. 

CALAVERITE.  A  telluride  of  gold,  containing  55.5  per- 
cent, tellurium  and  44.5  per  cent,  gold  ;  allied  to  and  com- 
monly misdescribed  as  sylvanite ;  sometimes  distinguish- 
able from  the  latter  by  a  yellow  color  and  lack  of  crystalli- 
zation. J.  W.  Finch. 

CANON.  A  narrow  valley.  Termed  Box  Canon  whon 
the  sides  are  perpendicular.  N/m /»'•*//. 

CAP.     Space  where  the  walls  contract  so  as  to  1> 
only  a  trace   of  the  vein.     A   pinch.      (2)      A   spa<-«'   in    the 
vein  where  the  gangue  becomes  barren. 

CARBONATES.  The  combination  of  carbonic  arid  with 
bases.  Soft  carbonates  have  lead  for  a  base.  Hard  car- 
bonates have  iron  for  ;i  l.ase.  An  ore  <>f  lead  and  silver. 

CEMENT.  Gold-bearing  gravel  united  and  hardened 
into  a  compact  mass. 

CIIKKK.      The    side   or    \v;ill    of   a    vein. 

CHIMNEY.  A  pocket  or  ore  body  when  found  pipe 
shape,  with  general  perpendicular  position. 

CHLORIDES.  Compounds  of  chlorine  with  other  ele- 
ments. 

CHUTE,  (or  SHOOT,  i  A  flume  for  sliding  ore.  <-> 
A  chimney  of  ore.  />»»/<//. 

CINNABAR.     Sulphide  of  mercury. 

CLAIM.  A  location.  The  amount  of  ground  whi<  h 
may  be  located  by  a  single  person  or  association.  N-  •  /<  ;•;/. 

CLEAN-UP.  The  operation  of  collecting  the  gold  which 
has  settled  in  the  flume  of  a  placer  or  in  an  arastra. 

CLEAVAGK.  The  property  of  splitting  more  or  less 
readily  in  certain  definite  directions. 

COASTER.  One  who  picks  dump,  or  gleans  in  a  ban 
doned  mines  for  ore  in  sight. 

COBBING.     Ore  sorting. 

COLLAR.  The  top  of  a  shaft  or  \vin/e.  t  •_' i  Tin-  tim 
bering  of  a  shaft  when  carried  above  the  surrounding  sur- 
face. 

COLOR.     A  particle  of  gold  In   the  pan. 

CONCENTRATION.  The  removal  by  mechanical  means 
of  ore  from  the  gangue  or  slime. 

CONTACT.     The  plane  of  meeting  of  two  formations. 

CONTACT  VEIN.  A  vein  along  the  plane  of  contact  of 
two  dissimilar  formations,  consequently  separating  the  two 
formations.  Yon  Cotta,  28. 

COPPER.  A  metallic  element.  Red,  hard,  sonorous, 
ductile,  malleable,  non-magnetic,  notable  as  best  available 
conductor  of  electric  current.  Name  derived  from  island 
of  Cyprus. 

COST-BOOK  COMPANY.  A  system  of  mining  partner- 
ship local  to  Cornwall  and  Devon. 

COUNTRY  ROCK.  The  rock  beyond  the  walls  of  a 
lode.  The  strata  between  or  across  which  the  lode  is 
found. 


GLOSSARY  MINING   TI.'K.MS.  529 

CO1  riko.     The  horizontal  line  on 

which    it    cuts    tin-   country    iv,-k. 

DING.      Spasmodic,    irregular,    surface    mining. 
i'ii:      A  rocker      A  short  trough   for  washing  gold. 
O:ir.i:iN.;.      Th,     timber   lining  of  a    drift,    shaft. 'win/e 
«>r    mill-hole.      Tin-    term    als.t    is    applied    to    rough    or    light 
tinihering  as  distinguished    fn-m    solid   set    work. 

An    interseetinu;   vein. 

ss    Crr.       A    level    driven    across    the    course    of    n 
vein.     A  short   tunnel. 

POT  ra.      The    following    table    gives    the 

equivalent  in  cubic  feet  <»f  a  ton  of  the  ordinary  ores  and 
their  gangues  to  he  used  to  calculate  ore  in  sight,  displace 
men 

t'nbic    Feet, 

"ii    of    water    i  i  he   unit  •    equals 

...  1.39 

Iron    P\  i-i  :•  •;  68 

7  I;T 
L06 

/ink    i:;. 
siii.-i  LI  to  16 

Silica     i  \\  11     to    i:i 

nitr  ••!•  i (nelM,  .1!  out rj 

I    above    flgun-s    are     f.,r     r,,ck     and    ore     in     pla.  -e. 

\Vhell      broken      they      occt!j.\      ;il.,||t      olli»-fourt  ll      gIVli:- 

known    «livi.l-  the 

figure    denoting    ih.-  ..    and    ihe  result     is    the 

ml. ic    f.ntfnt-    of   a    t"ii    of    the    material.       Th-  .  rav 

-nlphur 

I  ithin-    I!  ,ih  r. 

•  in. 

A     «-«>nij i-.d     «'f    r\ati<'L''ii     \\ith    a     metal. 

Tin-     '  niCtiOD     is     perf«.r d     by 

passing    an    an  >:ntion    of    pota>sinm    cyanide    OTff 

/ink  ire    |'reci|.itated.      H<  ///•// 

•innt. 

IM.M.    \\'"|:K.       Th.-    •i.-viopin-    ,,f    a    mine    preparatory 
to  st«»p'"-  -'S4- 

The   loose    fragim-nt^    d.-ia.-ln-d    from    the    l>ed 
rock    ami    washed    down,    to    which    the    term    slide    is    more 
appropriate:    waste   rock   of  any   kind.      //<//•// 
I'i  >wer  portion  of  a  vein. 

i  MKNI        1  he   Mi-xif.in  or  Spanish  equivalent 
•at  ion    and   record"   of  a   claim. 

DESCBNSION   THKOUY.      Tho    theory    that    veins    were 
filled    from    above. 

IU.,«,IN<;S.      Placers.       Li 

IHKK.   A    fissure  made  and   filled   by    plutonic  action, 
rock    is  most  commonly  porphyry.      It   is   often   barren, 
but  in  some  cases  mineralized;  or  may  carry  a  mineral!/'  (l 
selvage  and  so  appear  as   the  wall   of  a   lode. 


530  GLOSSARY  MINING  TERMS. 

DILUVIUM.  A  deposit  of  loose  boulders,  earth,  etc., 
attributed,  geologically,  to  deposition  from  water. 

DIP.     The  line  of  declination  of  strata.     Bainbri<l<i< 
Yale — The  angle  which  a  lode  makes  with  the  plane  of  the 
horizon.     Von  Cotta,  26.     The  departure  of  a  vein  from  the 
perpendicular  or  from   the  horizontal. 

DITCH.      An   artificial    water   course,   flume   or   canal. 

DIVINING  ROD.  A  stick  of  witch  hazel  or  other  like 
device  used  in  prospecting  for  lodes.  Lair  v.  Grant,  7  M.  ]'. 
57;  37  Wis.  5^8. 

DOLLAR.  From  the  German  Thaler.  One  humlnd 
cents.  GOLD  23.22  grains;  alloy  2.58  grains;  weight  25.8 
grains.  Coined  1849-1880.  SILVER  371'xi  grains;  alloy  41*4 
grains;  weight  412^  grains.  Coined  1794-1804,  1836  1 
1MO-1X73,  1878-1904.  Legal  tender  unlimited.  The  M<-\i 
can  dollar  contains  :;77.17  grains  silver  and  40.62  grains 
alloy.  Spanish  dollar  the  same.  D.  F.  Harris,  Xutnit<nnit- 
ist,  Adams,  N.  Y. 

DOWNCAST.  A  ventilating  shaft  with  descending  cur- 
rent of  air. 

DRIFT.  An  underground  passage  driven  horizontally 
on,  or  with,  the  vein. 

DUMP.  A  deposit,  or  place  of  deposit,  of  waste  rock 
or  tailings. 

ELVAN  COURSE.  A  plutonic  dike.  Lyell.  Argall. 
Corn. 

Kxri.oiTATioN.  The  active  working  of  a  mine  as  dis- 
tinguished from  prospecting. 

FACE.     Synonymous  with  breast. 

FATHOM.  A  space  6  feet  forward  and  6  feet  verti- 
cal with  the  width  of  the  vein. 

FAULT.     A  dislocation  of  strata.     Bainbrldffe,      Fata 

The  dislocation  of  a  vein  from  its  original  position ;  a 
heave ;  a  throw.  Von  Cotta,  £9. 

FI:I:DKR.  A  small  vein  starting  from  some  distant 
point  and  running  into  a  main  lode.  It  is  practically  syn- 
onymous with  spur.  See  Bainbridgc  2. 

l-'i-:  i.DSi'AK.  A  vitreous  crystalline  constituent  of 
granite,  gneiss,  porphyry  and  many  other  rocks. 

FISSURK  VI:IN.  A  fissure  or  crack  in  the  earth  across 
its  strata,  filled  with  mineralized  matter. 

FLOAT.  Loose  quartz  or  ore  detached  from  the  vein 
and  found  below  it. 

FLOOR.  The  rock  underlying  a  horizontal  vein  or  de- 
posit. 

FLUME.  A  ditch  carried  in  frame  work  on  or  above 
the  surface. 

FOOT  WALL.     The   under  wall  of  the  vein. 

FORFEITURE.  The  loss  of  possessory  title  as  the  re- 
sult of  abandonment  or  failure  to  comply  with  the  condi- 
tions under  which  the  title  was  held. 


GLOSSARY  MINING  TTOMS.    ^  :.  ,1 

GAD.     A  small   pointed    \\ 

«;.\M:N.\.     A  sulphide  of  lead:   when  not  amorphous,  la 
-'alllxed   on   the   cubic   system  :    when    pure  contains   s''.  •  '• 
per    cent,    lead.    i::.l    per    .•••lit.    sulplnir.       t'arries    silver    in 
greatly    varying    quantities. 

CUuanr.  A  level  .11-  drift:  applied  chiefly  to  col- 
lieries. 

material:    vein    matter:    the    l..<se 
material    forming   the   matrix    of   the   ore. 

GASH  YI:IN.  A  vein  which  continues  for  practical 
purposes  only  a  short  distance  below  the  sod,  generally  nar 
rowing  as  it  descends. 

•ML  A  rounded  nodule  ,.f  stone  containing  a 
caviiy  studded  with  crystals  or  mineral  matter:  the  cavity 
in  such  nodule. 

QmnSB  A  r.M-k  compiled  ..f  the  same  <-»ust  it  ueuis 
as  granite.  1  m  r..liai.-d  ..r  sti-atiti«d. 

1  n:i         l  ir.     in    eollleries    produced    by    sponta 
neous  combustion. 

ID.      A    metallic   element  ;    bright    yellow.      Almost 
invariably  found  native  associated  with  a  variai»!«-   pm*  in 
age  of  sliver.     One  «mnee   jnir.-  K"'d  eoined  in    1.   s.  dollars 
is   worth   $20.67. 

G08S  /.-on     lint. 

t  OE.  A  soft  selvage;  a  clay  streak  found  follow 
Ing  a  wall,  or  a  slip  or  an  ore  measun* 

<;i:\N!i!  \  plutonic  crystalline  rock  composed  of 
feldspar,  quart/,  and  mica. 

GRASS.     The  surface  over  a  mine.     Com. 

\     i.rm    used    where    a    working    is 
started  from,  or  \\-..rk.-d   up   n>.  the  sun. 

ore  eontaining  e«>p 

per  15  to  42  per  cent..  eomMn.-d   with   iron,  /ink,  silver,  nn-r- 
. nic    and    an:  iiiiMDN .       It    varies    in    colnr.    hardn.^s 
and   s; 

Trovlsioning   a    prospector   on    n    bar 
gain   to  share  his  discoveries. 

H.M'K.      Tin-  dip  of  the  vein.      ' 
il\N.,!N.,    W.M.I..       Th«-    uppi-r    wall    of    a    vein. 
in  \i '!%>,.     The  breast  or  face  of  a  working. 
ih  u>iMiS.     The  mass  of  gravel   and  pay   dirt  above 
the  head  of  a  slui. , 

Ih  \\r.  The  horizontal  dislocation  of  one  lode  by 
anott 

IH'iii  Kxii"si\is.  Those  of  greater  detonating  force 
than  black  powder. 

H"i:M  A  mass  of  country  rock  between  the  enclos- 
ing walls  of  a  vein.  To  constitute  a  Horse,  "It  is  neces- 
sary that  the  walls  should  converge  about  the  mass  below 
and  at  both  ends,  but  the  greatest  known  horses  do  not 
converge  over  hend.  The  two  walls  coming  to  the  surface 
are  in  some  instances  1,000  feet  apart."  Testimony  of 
l\in<j  IN  the  Dives  Case. 


532-  -     GLOSSARY  MINING  TERMS. 

HUDGE.     An  iron  bucket  for  hoisting. 

HUNGRY.     Barren. 

HYDRAULICS.  That  method  of  placer  mining  where 
the  gravel  is  washed  by  a  stream  operating  under  hydra ul it- 
pressure. 

I.    D.    B.     Illicit    Diamond    Buyer.      Afrim. 

IMPREGNATION.  A  metallic  deposit  having  undeter- 
mined limits  in  no  way  sharply  denned.  Von  Cotta,  87. 

INCLINE  DRIFT.  A  drift  run  at  an  incline  to  sub- 
serve the  drainage.  (2)  A  misnomer  applied  to  a  slope 
sunk  upon  a  deposit  having  slight  departure  from  the  hori- 
zontal. 

I.\FiF.Ti;.\Ti"N  Tni:<>KY.  That  which  refers  the  origin 
of  the  ore  to  the  deposit  of  mineral  from  water  holding  it 
in  solution. 

IN.IKCTIMN  Tni:ni:v.  That  which  refers  the  origin  of 
the  ore  to  the  introduction  of  igneous  fluid. 

IN  I'I.ACI:.  In  Kitii.  Words  used  in  Section  •_•:;•_".•  of 
the  T".  S.  Revised  Statutes,  (nullifying  the  words  "quartz 
or  other  rock."  and  to  distinguish  lode  from  placer  claims. 

Set   p.  /<;.'. 

IKON  HAT.  <  /•:/*»  n  Ilnt.i  The  oiitcrclp  of  a  lode,  it 
being  usjally  colored  by  the  decomposition  of  the  iron. 
Von  Cotta,  38. 

.Ii«;  A  machine  for  concentrating  ore  by  means  of 
sieves.  Cum. 

.IIMI-.  To  t:ike  forcible  possession  of  a  claim.  (2) 
To  relocate  abandoned  prop.  riy. 

KIHMI.I:.      A    kind    of   hoisiing   bucket.      r 

LACGINC.  Poles  or  small  timbers  used  for  spanning 
from  one  stull-piece  to  another,  for  cribbing  mill  holes  and 
for  lining  behind  tbe  timbers  of  ;i  shaft. 

I.i:.\i>.       An    object  ion.-ihle    form    of    tbe    word    b>de. 

LEAD.  A  metallic  element,  bluish  while,  <;a!.na  and 
carbonates  .-ire  iis  m<»si  common  , 

I  I:IM;K.  A  term  in  use  on  the  Pacific  slope  synony- 
mous with  lode.  N»  »  i>.  /<L>. 

I.I.N«;TH.  A  certain  portion  of  a  vein  when  taken  on 
a  hori/ontal  line  on  its  coin 

LI:VI:I..  A  drift  along  the  vein;  the  word  generally 
used  where  there  are  a  series  of  drifts,  as  tiist  lev.  I.  •econd 
level,  etc.  See  Gamin  i:«  r.  Lowry,  :>;  /•./»•.  >•/•;.  /.•»  M.  /,- 

1. 1 IT.     The  space  between   two  levels. 

LITTLE  (JIAXT.  A  jointed  iron  pipe  and  nozzle  de- 
creasing in  diameter  with  the  increase  of  the  hydraulic 
pressure:  used  in  placer  mining. 

LOCATION.  The  successive  acts  by  which  a  claim  is 
appropriated.  i '_' »  The  claim  itself. 

LODE.  An  aggregation  of  mineral  matter  containing 
ores  in  fissures.  Ton  Cottn.  2C>.  A  vein  of  metallic  ore.  A 
ledge,  for??.  Sec  />.  1<>1.  .(A  fault  in  the  country  which 
has  become  mineralized.  .1.  //.  Qrten.) 


GLOSSARY  MINING  TERMS.  f>tt 

MAN    ll"i.i:.     An  opening  just  large  enough   to  peVmit 
-    Let  \\een    i\v«»    workings* 

MATKIX.  «)f  the  lode.)  The  country  rock  in  which 
ih«'  vein  is  found.  »nf  the  ore.  i  The  rock  Of  «':irthy  mate- 
rial inclosing  the  ore;  the  vein  stone.  l.ntin. 

Mvrii:.       on,-    of    ill.-    products    of    matte    «»r    pyritic 
smelting.      It  consists  either  of  ferrous  mono  sulphide   iFeS), 
or    of   cuprous    sulphide.      (Cu.-Si.    with    ferrous    mono-sul- 
phide   in    varying  proportion.     Franklin   If.   Car/"  nt<  r.  /'//./>. 
9«M  I  tin  ii. 

<  '  ;ieksilver.      A   shining  silver  whit e  metal. 

liquid   at    temperature   almve    — 40   deg.    Fahr.      P.oils    at    f.r.'.i 
deg.    Fahr. 

IDnrAIXUBGT.  Tlit-  an  «»f  \\orking  metals,  including 
smelting,  refining,  and  parting  them  from  the  ores. 

Mn-.v.       nnc    of    tlu»    constituents    of    granite.       Wlu-n 
separately    crystalli/id    is    found    in    clear    laminated    plates. 
Mi;  A    passage   leu    in    the  stope  for  throw- 

ing  down    rock   or    < 

Mni.  Kt\        The    returns    of   a    lot    of    ore:    the    assay 

of  ore   In   quantity    as   distinguished    from   a    specimen   assay. 

MINI:.       Any    .-\.  :i  \:i  t  ion    made    for    mineral.       <  -  i     An 

op, Tied.    MS    distinguished    from    an    untouched    deposit.       (3) 

1  nder^r.  i    from  superficial   workings  or 

ries. 

MIM::S  I\<  i!  There  i-  an  aM-mpted  statuloi-y  defi- 
nition in  «  '  \\lii.-li  is  oi.s.-nre  and  inexact.  See 

his    statute    directs. 

tvill    (ieli\,-r    ;liroiii:!i   each   square   inch   of  op.-ninir.   a   quainity 

\\hi.h    varie>    from    1.1    to    1.7    cuhic    feet    of    water    per    min 

•  •in    aiming   engineers    is    to   tak.-    l.U    cuhic    feet 

per    minute    as     th piivalent    of    an    inch. 

miner's    inch    is    the   quantity    of    water    which    will 

rrotf    thr..u-h    an    aperture    in    its    side     1 

inch    square.    \\  !>elo\v    the    constant 

level     of     the     watef     ail<l     is     e.plivalellt      to     I.UlV,     rilhic     feel      pel' 

minute.       •       •       •       The    most     common    illustration    of    the 
min.  hole     1      inch     square     through     an     inch 

hoard."        t  /;/(     \\'<ii',  ,>,  n     Mainnil    H  i,<l raul i<-     Mining.    /*.     I"!. 

Mr  I  he  license  to  locate,  used   in   Aus- 

tralia. 

M  :•.::•:  -.  ;  ;  A  sulpliide  of  the  metal  Molybdenum  ; 
found  in  scales  with  metallic  lustre  closely  resembling  tin 
foil  or  gray  copper;  also  in  a  granular  form,  showing  steel 
hlue  flake  crystals.  Valuahle  and  marketable  when  concen- 
trated, as  an  alloy  for  high  grade  steel.  i  /.'  PfMMttl. 

K.  A  valuable  sand  obtained  by  sluicing, 
carrying  thorium  oxide  used  in  manufacture  of  incandes- 
cent gas  mantles. 

M'-vii:  A  drill  or  short  bar  sharpened  to  a  point, 
used  in  cutting  hitches  and  in  broaching. 

The  man  who  fills  the  bucket  or  tram. 

•NOTI:  Section  ::  of  fretgtita  and  meavarei  «-hap 
ter. 


534  GLOSSARY  MINIMI  TK1IMS. 

MUNDIC.  Copper  or  iron  pyrites.  Whiit-  Mundic  is 
mispickel  or  arsenical  pyrites. 

NODULE.     A  small,  rounded,  stony  concretion. 

OPEN  CUT.  A  longitudinal  surface  working  not  en- 
tering cover. 

OPERATOR.  One  who  works  a  mine  either  as  owner 
or  lessee. 

ORE.  The  mechanical  or  chemical  compounds  of  the 
metals  with  baser  substances.  The  conventional  divisions  in 
the  ore  market  are:  DRY  OKK  :  An  ore  which  does  not 
contain  any  lead,  or  less  than  5  per  cent.  MIII.IM;  OKI:: 
A  dry  ore  that  can  be  amalgamated  or  treated  by  leaching 
and  other  processes ;  usually  these  ores  are  low  grades, 
free,  or  nearly  so,  from  base  metals.  SHUTIM;  OKI::  Such 
as  is  better  adapted  to  smelting  than  any  local  treatment. 
Any  pre  of  greater  value  when  broken  than  the  cost  of 
freight  and  treatment.  REFRACTORY  OKI:  :  An  ore  contain- 
ing in  quantities,  arsenic,  antimony  or  other  base  metals. 
which  prevent  economical  treatment  by  usual  and  available 
processes.  IV.  J,  Chamberlain. 

ORE  IN  SIGHT.  Ore  disclosed  between  drifts  and 
shafts  (or  winzes)  so  that  it  can  1..-  measured,  on  the  as- 
sumption that  if  exposed  on  four  sides  or  three  sides  it 
presumably  exists  in  the  body  of  the  stope  the  same  as  in 
the  exposures.  If  exposed  on  two  sides,  it  is  counted  as 
in  sight  to  the  extent  of  one-half  the  contents  of  the  stope. 
Ore  between  drift,  shaft  and  surface  is  ore  in  si^ht  after 
allowance  for  depth  of  slide.  Ore  exposed  on  only  one 
side  is  not  ore  in  sight.  A irhu  Thomas. 

OKK  KIM:UVHS.  The  ore  body  where  exposed  ready 
for  stoping. 

OUTCROP.  That  portion  of  a  vein  appearing  at  the 
surface. 

OUTPUT.     The  gross  product  of  a  mine. 

PAN.     An  iron  basin  used  in  gold  prospecting. 

PATCH.  A  small  placer  claim  outside  of  the  main 
gulch. 

PATIO.  A  yard  or  court.  The  space  where  ore  is 
mixed  and  amalgamated  by  tread  of  horses.  8p. 

PATIO  PROCESS.  The  Mexican  method  of  amalgama- 
tion of  silver  ores. 

PAY  KIM-K.  The  lode  material  in  which  the  mineral 
or  pay  is  ^ound.  N»  <  (>un>-t:. 

PAY  STKKAK.  The  ore  body  proper,  or  the  seam  of 
decomposed  material  which  takes  its  place  and  preserves 
the  continuity  of  the  ore  body. 

PI:NT  H<TSI..  A  shed  or  hori/.ontal  barricade  across 
one  end  oi'  a  shaft,  made  of  strong  timbers  loaded  with 
rock  to  protect  against  any  accidental  fall  from  above. 
Corn. 

PHONOMTE.  A  volcanic  rock  of  porphyritic  texture  ; 
the  crystals  in  some  cases  so  minute  as  to  be  imperceptible 


GLOSSAKY   M1MNC,  T  Kit.  MS.  535 

unless   iiiagninYd  :   thin   slabs.  ring  when  struck,  whence   the 

namt1.    litrrally.    sounding   stone. 

I'I.NVH.  A  narrow  spac»-  where  the  walls  come  close 
together. 

PIT.  A  shallow  shaft.  In  Cornwall  the  working 
shaft  or  th.-  whole  mine  is  called  the  Pit. 

Prim.     Th«-  .lip  nf  a  lode. 

PI.A.  i  :u.  A  deposit  of  gold  not  in  place.  Applied  t«> 
all  classes  of  gold  deposit,  including  cement  and  channel 
claims.  i-xtvpt  lodes  in  place.  For  special  meaning  under 

./"  <;<>ld.  Platinum.  Tin. 
-  ami  Mona/ite  an-  the  minerals  won  by  thU 

Pi.  A  i.  A  small  chamtur  <>n  tin-  side  or  sole  of  a  level 
wh.-iv  it  inl.  :  -hai't.  made  i<»  t'acilit  at  .-  dumping. 

When-  ii  U  <-ut  in  the  sole  it  is  called  a  trip-plat.  <'»ni. 

ached  ore  body  :  a  nesi  of  ore. 

A  t.-nn  appli.-d  (,,  a  mine  wh.-r.>  thr  pay 
ore  occurs  in  small  detached  bodirs  with  intervals  of  pi  mi- 
ore  or  barren  material.  The  word  implies  a  slur  on  th<- 
mine.  Paull  v.  //<///<  /'.</.  .••  i/  .J6. 

PORPHYRITIC  (  A  base  of  granitt-  (..utaining 

prominent  crystals  of  feldspar. 

PORPHYRY.  A  general  term  including  sm  h  piutonlc 
rocks  as  exhibit  well  formed  crystals,  usually  of  feldspar,  in 
a  finely  granular  or  compact  base  of  the  same.  G 

PROSPECTING.     A  search  for  deposits:  applied  both  to 
seeking  for  undiscovered  veins  and  to  the  investigation 
of    the  value  of   known   veins  by  exploration. 

m:s  (White.)  A  sulphide  of  iron.  (Y«-iiow  i 
A  sulphide  Of  copper.  P.riuht  crystaili/.-d  m.-tallic  looking 
and  very  common  gold  bearing  ores  usually  low  ^rad.-  and 
spoken  of  in  common  parlance  as  the  "Iron."  Or. 

QUARRY.     Any  open  work  in  rock  on  a  plan  of  exca- 

vatinj:    th.-    mi  in-    mass,    as    distinguished    from    working    a 
seam    or    vein   by  shafts   or   approaches    und.-r    .over. 

QUART/..  Sili.a.  A  constituent  of  granite.  The  free 
.ilifornia  hi-in^  found  in  quart/,  tin*  word  was  ap 
pli.  d  to  tbp  u'aimu.-  of  such  lodes  and  so  to  other  forms  of  ' 
v.-in  matter:  until  it  is  now  used  vaguely  to  m.an  the  ore, 
th.-  tloat.  the  gangue.  or  that  part  of  the  gangue  which  in- 
di.at.s  th.-  pay  stn-ak  In  the  Acts  of  Congress  it  is.  used 
with  the  word  rock  (quartz  or  other  rock)  in  the  sense 
of  pay  rock. 

A  metamorphosed  sandstone  :  a  rock  con- 

taining usually  about  98   per  cent,  silica  with  a   small   per- 
centage of  foreign  materials,  principally   iron. 

QOICKSILvri:.       >'•  i 


ISE.      A    shaft;  or    winze   which    has    been    worked 
from  below. 

RAND.     Range  of  hills.     Dutch. 

REEF.      An    Australian   term    for  lode  or   ledge. 

REGULUS.     The  Alchemic  term  for  "matte." 


536  GLOSSARY  MINING  TKRAIS. 

UIIYOLITE.  A  name  common  to  igneous  rocks  of  a 
wavy  texture  indicative  of  movement  or  flowing  when  in  a 
fluid  state. 

RIFFLE  BLOCKS.  Cross  sections  of  timber  set  on  the 
floor  of  a  sluice  with  irregular  spaces  between,  in  which 
the  gold  settles.  American. 

ROB.  To  gut  a  mine ;  to  work  for  the  ore  in  sight 
without  regard  to  supports,  reserves  or  any  future  consid- 
erations. 

ROCKER.     See  Cradle, 

ROOF.  A  stratum  or  rock  overlying  a  deposit,  or 
flat  vein.  The  top  or  back  of  any  working. 

ROYALTY.     The  dues  to  the  lessor. 

RUSTY.  Oxidized.  Ore  coated  with  oxide.  Applies 
to  gold  which  will  not  easily  amalgamate. 

SCALE.  A  loosened  fragment  of  rock  threatening  to 
break  off  and  fall. 

SCHIST.  Crystalline  or  metamorphic  rock  with  slaty 
structure ;  usually  carrying  mica,  sometimes  argillaceous. 

SEGREGATIONS.  All  those  aggregations  of  ore  having 
irregular  form  but  definite  limits.  They  differ  from  beds 
and  lodes  by  the  irregularity  of  their  form  ;  from  impreg- 
nations by  their  definite  limits.  Von  Cotta  81. 

SKI  \.\<;i:.  A  lining ;  a  gouge;  a  thin  band  of  clay 
often  found  in  the  vein,  upon  the  wall. 

SET.     Portion  of  ground  taken  by  a  tributer. 

SHAFT:  A  pit  sunk  from  the  surface;  an  opening 
more  or  less  perpendicular  sunk  on,  or  sunk  to  reach,  the 
vein. 

SHIFT.  (1)  A  miner's  turn  or  spell  of  work.  \\  <  h 
ster.  Two  shifts  is  the  equivalent  of  16  to  !'<•  hours  work, 
three  shifts,  24  hours  work,  of  one  man.  <LM  All  the 
miners  who  go  on  and  off  at  the  same  hour  are  known  as 
one  shift.  In  large  mines  there  are  usually  three,  styled 
the  day,  night  and  graveyard  shifts.  Bcnj.  C.  Cutr<». './>-. 

SILICA.  In  chemistry  it  means  Silicon  dioxide. 
Formula,  Si. 02.  It  Is  ordinary  quartz.  Between  ore  buy- 
ers and  sellers  everything  not  soluble  in  nitric  and  hydr.i 
chloric  acids  is  counted  as  "silica" — a  determination  often 
manifestly  unjust  to  the  seller.  Franklin  If.  ('<///*»///</. 
Ph.  D. 

SILVER.  A  metallic  element ;  the  whitest  of  the 
metals.  One  oz.  pure  silver  coined  in  U.  S.  dollars  is 
worth  $1.2929  gold. 

SILVER  GLANCE.  An  ore ;  when  pure  contains  87  per 
cent,  silver  and  13  per  cent,  sulphur. 

SKIP.  A  square  hoisting  bucket  running  on  guides, 
or  in  grooves. 

SLICKENSIDES.  Smooth,  polished  portions  of  the  wall 
or  of  some  vertical  plane  in  the  lode,  caused  by  friction. 
It  may  occur  on  the  ore  itself.  'German. 

SLIDE.  (1)  One  kind  of  fault — the  vertical  dislo- 
cation of  a  lode.  (2)  The  mass  of  loose  rock  overlying 
either  lode  or  country. 


<1I.«»SSARY  MINING  TETCMS  537 

11:       An    opening   driven   upon    the   inclination   of 
tin-   vein. 

si  IKK.  A  series  of  boxes  set  in  line  and  floored 
with  ritlle  Mocks  to  catch  the  gold  in  a  placer  mine. 

SMKLTIN.;.  The  reduction  of  metals  from  their  ores 
in  furnaces.  It  is  a  form  of  the  word  melt.  In  smelting 
the  ore  is  melted.  In  other  processes  it  is  roasted. 
MATTE  S.v  A  process  of  smelting  where  the  values 

in  tin*  ores  .-ire  collected  in  an  iron  and  copper  sulphide 
ulus}  technically  called  "matte."  When  iron  and  cop- 
prr  pyrites  are  added  to  the  charge  for  their  fuel  value 
as  well  as  their  matte-forming  properties,  the  process  is 
called  "pyritii-  smelting."  Franklin  If.  <'<iri><  nt>  r.  rh.  D. 

SOLE.     The  floor  of  a   horizontal  working. 

SOLLAR.  Any  platform  or  wooden  floor  or  covering 
in  a  working,  <'»ni. 

SOUGH.     A   drain. 

SPAR.  A  general  term  applied  to  rock  with  distinct 
cleavage  and  lustre. 

SPELTER.     Commercial    zink. 

SIM  i. IN.;.      limbering     used     in     quicksand     or     loose 
nd   where    lathes    are    driven    behind   timbers    and    kept 
flush    with    thr    In  ading. 

A  branch  or  off-shoot  from  a  larger  vein. 

STAMPS.      Machine    for    crushing    ores     by     vertical 

STOPE.  The  working  above  or  below  M  h-vel  where 
the  mass  of  the  ore  body  is  broken.  Corn. 

'I'lie  :n-t  oi  lu-raking  the  ore  above  or  !><• 
low  a  irvrl  :  whm  done  from  tin-  hack  of  the  drift  it  is 
rullrd  overhand  or  back  stoping ;  when  from  the  sole  it  is 
underhand  stoping. 

1    of    rock    or    earth    of    any    kind. 
Dana.      Thr    plural    is   strain 

STKIKI:  Thr  extension  of  a  lode  or  deposit  on  a 
horizontal  line.  Von  Cotta  19.  Synonymous  with  trend  and 

STI  ss  timbers  at  the  foot  of  a  stope.  Any 

extra  heavy  timbers. 

SUBLIMATION  TBBOBY.  That  which  refers  the  filling 
of  fissures  to  material  deposited  from  ascending  steam,  or 
by  condensation  from  a  gaseous  condition. 

Sri.iMi  vi  i:.  The  combination  of  a  metal  with  both 
sulphur  and  oxygen. 

SULPHIDE.  The  chemical  union  of  sulphur  with  a 
metal. 

sniMit  R.  A  non-metallic  element.  Yellow,  fusible, 
hi  it  tie,  insoluble;  except  Oxygen,  the  most  common  base 
<  oinhining  element  in  metallic  ores,  such  as  Pyrites.  As 
a  commercial  product  most  commonly  mined  from  old  vol- 
canic crater-  Gtaeatesl  production.  Sicily.  Largest  depos- 
Louisiana  :  I'.lark  Ko.-k,  Utah;  Sun  Light 
basin.  Big  Horn  County,  Wyo.  T.  8.  T»<l,l.  Importer.  LT» 
Broad  street,  N.  V. 


538  GLOSSARY  MINING  TERMS. 

SULPHORET.  A  sulphide.  Sulphide  is  the  more  re- 
cent and  approved  term. 

SUMP.  The  extension  of  a  shaft,  forming  a  pit  for 
the  collection  of  water.  Corn. 

SYLVAMTK.  A  gold-silver-tellurium  combination. 
Pure  steel  gray  to  silver  white,  inclining  to  pale  yellow. 
(Jold  i_'4.r. ;  silver  13.4;  tellurium  62.1.  Usually  in  fine 
grains  or  crystals.  A.  B.  l'nn:<l. 

SVNDK  AIK.  An  association  or  council  of  persons;  in 
use  since  the  civil  war  to  designate  any  combination  formed 
i<>  carry  out  a  large  financial  enterprise. 

TACKLE.     The  windlass,  rope  and  bucket.     Corn. 

TAILINGS.  The  refuse  discharged  from  the  tail  end 
of  a  sluice,  or  washed  from  any  sort  of  placer  working. 
The  waste  rock  left  after  any  process  of  ore  separation. 

TELLURIUM.  A  silver  white,  brittle  substance,  com- 
bining with  many  metals  to  form  tellurides  in  the  same 
manner  as  sulphur  forms  sulphides. 

TIN.  A  soft,  malleable,  white  metal.  Mined  in  Corn- 
wall since  prehistoric  times.  I'sed  commercially  as  a  coat- 
ing to  thin  sheets  of  iron,  and  as  a  factor  in  many  alloys. 

TRIHUTKUS.  Miners  who  work  a  .vrf,  or  piece  of 
ground,  taking  the  proceeds  as  wages,  after  royalty  de- 
ducted, but  v.-bo  work  under  direction  of  the  owners  and 
bold  no  possession  or  title  as  lessees. 

TimriM.i:.      A    fault. 

TUNDRA.  The  moss,  or  scrub-covered,  regions  of  the 
Arctic. 

TINCSTKN.  (Wolfram.)  A  bard.  heavy,  grayish 
white  metal,  that  fuses  with  great  difficulty.  A  steel  hard 
ening  alloy.  Its  ores  are  s<  la-Hit ••.  Huebnerite  and  Wol- 
framite, all  <>f  he.-ivy  specific  gravity.  \Vol t'rainit e  is  sim- 
ilar to  iron  in  appearance,  but  when  sera  tdn-d  shows  red- 
dish brown.  Hnebnerite  shows  reddish  brown,  straight  and 
fan-shaped  crystals.  Matrix  of  both,  usually  white  quart/ 
or  buff-colored  quartzite.  A..  /'.  Freitzel. 

TUNNEL.  A  horizontal  excavation  starting  at  the 
surface  and  driven  across  the  country  for  discovery  or 
working  purposes. 

Irr  WMKK.  Work  paid  for  by  the  foot  as  distin- 
guished from  tribute  work. 

UPCAST.     A  ventilating  shaft  where  the  air  ascends. 

URANIUM.  This  metal  occurs  in  the  mineral  urani- 
uite  or  pitch  blende  as  an  oxide  ;  also,  associated  with  vana- 
dium in  the  mineral  carnotite.  The  color  of  pitch  blende 
varies  from  gray  to  black;  that  of  the  carnotite  is  lemon 
yellow.  Radium  occurs  in  these  ores  and  may  be  prepared 
from  them.  U  ;//.  /'.  llrml<li-n. 

VANAIUTM.  This  metal  occurs  widely  distributed, 
but  is  rarely  met  with  in  large  quantities.  The  largest 
known  deposit  occurs  near  Placerville  on  the  San  Miguel 
Kiver  in  Colorado,  in  a  sandstone  to  which  it  gives  a  green 
color.  Vanadium  alloys  with  iron,  forming  ferro-vanadinm. 
used  in  making  certain  high  grade  steels.  It  is  best 


GLOSSARY  MINIM;  TI.K.MS.  539 

known     in     commerce     ;is     vanadic     acid.     Y.L' <>.."..       U 'in.     /'. 
H«nl<l>  n. 

VI:INS.  Aggregations  of  mineral  matter  in  fissures  of 
forks.  \  ',n  Oott*  If;  /.••//.•i/j/-/»/i/«  ,'.  The  word  vein  has  ;i 
!>roa<i  tli.-in  lode,  including  non metallic  beds.  Bet 

/*.     M/.       It     is    also    applied,     in    working,    to    smaller    stains 
threading     tli«-     i:r«-at.-r    ili-p.isii.       Set      I  •  mi    ami     \  •  tn. 

\.  A  small  vi'in  or  i  h»»  l>rani-h«'s  of  tlu>  v«>ta.  or 
main  v»-in.  >'//<///. 

A     main     v«-in.       \'i:i.\     MAI-KI:.       Th«»    nmihi-r 
v»'in.      >/"/>(. 

A   ravity   in   iln«   ore  or  rock. 

WAI. i..  Tli.-  plan.'  oi  tlu>  country  \vh«>n>  it  tourli.-s 
th.'  side  of  the  v.in.  \\li.n  used  in  reference  to  lodes.  Tln> 
side  of  a  level  or  drift,  \vh.>n-  ust-d  with  reference  to  the 
workii  _  p.  188. 

i  AI..  A  pit  or  hoi.-  in  the  ground.  A  mine.  Tin- 
nam«s  ..t  most  mines  in  <'oinwall  are  preceded  by  the  word 
\Vhml.  (ild  form  //in/.  Corn. 

WHIM.      A   ii.a.hine  for   raiKing  the  bucket  by    m 
•  if   a    revolving   diMim. 

WHIP.  An  apparatu-  for  raising  I  In-  burke)  with 
i-op,'  and  pulleys,  by  horse  p..\ver  on  a  straight  drive. 

\\  i  .Hi    sunk    t"i-om    a    level;    not   necessarily 

eonneeting    two    lev. 

/INK.  A  m.-tallie  eb-meiit  :  bluish  white;  generally 
found  as  a  sulphide  (blende)  or  as  a  carbonate  (cnlamine.. 


540 


TABLES. 


j»    a  t«-  -  •"  -  ri : !  - •  •*  '  '  -  -  -  - 1-  -  - 


-  't  >-  "'  .'  ::  ~  >'  c  -'  r.  ,-  y  -  i-  :  :i  i-  xcooo 
_*^  >  :  i  —  z  i  -.--•.-  r  , :  -  r.  .  -.  r.  r  '-  : :  :  i  —  /  : : 
'<?*'  »-i(M  ^  fi  —  , , ?i 


TABLE  OF  CASKS  CITED. 


541 


TABLE   OF    CASES   CITED. 


AMmtt    v.    Smith,   c/f,  ,/    /',/. 
Adam-  330. 

All  II..  v.  cripp.-n.  ::i_' 
All  Kle  v  M.  I.  ,•;,,,.  ::i  1. 
Ahren  v.  lMihiii|iie  Co.,  • 

Hilk.-v. 
-  v.    Triumph    « 

•rthern    CO., 

^hennan.     ll'T 
All.-.'    Co.    v.    Sir. 
Allen    v.    I: 

v. 


. 

:»8. 

/.If    mil.  |      «  'O.      V.       I  ' 

101,  IM 

.\in:i.J..r   Co     v.    1 

-  v.     South     Spring    Co., 

i;.;. 

M     Co    W.    I'.  >.   -J8,  68, 
167. 

Am.  i  -ir.-.n     Sm.     c...     v.     Lind8ley, 

Am.\  siiv.-r-.miih   Case,    1  73 

An:.,  -on.  l;i    Co,     v.     I'.u" 
Anchor   \.    Howe,    172 

US.      60, 

100. 

--  v.   : 

-  v.    Hapler.    Ml. 

-  v.    I 

Anthony    v.    Jills.  .n.    -JIT. 

Ant  l.i  iinningham,    264. 

Anvil    CO.    v.    Hum).  I.-. 

Aidesco  Co.    v.    <;ils..n.    .::.' 

Argent 

-  v.       T.-rrilil.'      Co.,       17.".. 
1T'.<     187, 

Argcnnut     Co.     v.     Kennedy     Co., 

-  v.  Turnrr.    l  »::.    L< 
Arkansas   Val.   C'o.    v.    Helden  Co., 


Armstrong     v      Lower,     57,     liM. 

149,    L6O,    P.M. 
Ainett    v.    Linhart,    198. 
ArnoM    v.    llak.-r.    ::i  I. 
Ashes'  I  MI r.-i ml.    8 

Ashland    Co.    v.    \Yallao-. 
Ashman    v.    Wi^t.-n.    I'M. 
Asp.-n    CO,     v.     Ku<-k«T. 
Astlazaian      v.     Santa     Kita     Co., 

Atchison   v.   Peterson,     194.     880, 
281. 

Atkins   v.    lh-n.li. 
Allanti       • 

•  II    v.    Sl.-v. 

Attwo,,,i  v.   Prleott,  22,  ::  »^. 
Aurora    Hill    Ca    r,     85    < 

148. 

Austin    v.    I.rrlin.    ::_'!. 
Ailom   Co.   v     l.i til.«.   480. 

v.    Whit.-.    1  in. 

Philadelphia    Co.,   '•"'.    291, 

v.    Th.. nil. .n.    ::."»!. 

r.a.iL-. :  itockton   Co.,   1L'«>. 

Wilson.    L'lio. 
P.aillr    \       I. 
r..iinl    v     Williamson,   192. 

f    v.    Montana    <  !o  ,    880. 
Hakerstield    Co.    v.    K.-i  n    County, 

l". 
Italian!    v.    iJolol,,    120. 

:     v.    |»al,-. 

I  laniard    v.    McKenzie,    264. 
\     Koane  Co..  :;i"> 
I'.arU.-y    v.    Phillips.    291. 
Bassick   Co.    r.    s«-hoo|ji,.|«i.    264. 
Baxter    Ca    \.    1'ai  t.-rson.    58. 
Boy  v.  Oklahoma    Ca,    i(«>7. 

State  Ca   r.   r.n.wn.  :; »:.. 
Beals  v.  Cone,  3"    82    89,    n.  :.:. 

L04,     im.    134,    489. 
P.ean    r.    PioniM-r   c,,.    :;:,7. 
Bearer  Ca  w.  St.  Vrain  c(,.f  92. 
Beck   v.   O'Connor,    261. 


542  TABLE  OF  CASES  CITED. 


Becker  v.  Pugh,   14,  23,  120,  130, v.  People.  :;i:', 

345,  346,   350,  480,  481,  492.  Brady  v.   Husby.  :;•;.  :;4'.». 
Bejchei    Co.    v.    Deferrari,    107.  Bramlett   v.    Flick,    76,   87,    845. 
Belk  v.  Meagher,  37,  83,  90,   109,  Branagan  v.   Dulaney,   153. 

346,  491.  Brash   v.    White,    128. 
Bell  v.  Bed  Rock  Co.,  6,  94.  Breed    v.    Bank,    32'. ». 

-  v.   Benson.   .".7."..  Brewster    v.    Shoemaker.    2!>.     \~>. 

-  v.    Skillicorn,    184.  1x7.    254. 

Bellevue    Co.   v.    Mooney,    356.  Bn.ckbank  v.   Albion  Co.,   122. 

Bennett    v.    Harkrader,    77,    489,  Brooks   v.   Cook.   2!'2. 

503.  v.    <iallin.    291. 

Bennitt  v.  Whitehouse,  371.  Brown   v.    Caldwell,    841, 

Benson   Co.   v.   Alta  Co.,  98,  305,  -           —  v.   '49   Co.,   248. 

352.  v.  Gurney,  88,   n»x. 

Benton    v.    Hopkins,   366,   493.  -  v.   Levau.    58,    77. 

Berea   Co.   v.   Kraft,   357.  —  v.   Oregon  Co.,  88.    !«»!». 

Berg  v.   Koegel,   81.  122,  133. 

Bernard  v.   Parmelee,    4'.»2.  P.rownfield   v.    Bier.    221. 

Berry   v.   Frisbie.   802.  p.rnndy   v.    Mayfield,    11'.'.    »7l. 

Bertha   Co.    v.    Martin.   35x.  Bryan   v.    UcCaiff.   41,   487. 

Bettman  v.   Harness.   862,  Buck  v.      Jones,  314. 

Bevis  v.  Markland,  228.  Buckeye  Co.  v.  Carlson.   27".   :;i>2. 

Bic-knell    v.    Austin    Co.,    293,    295.  Buckley  v.   Fox,   BID. 

Billings   v.   Asj.cn    Co..    809,    ::in.  —  v.   Port    Ilenr\ 

Bishop   v.   Baisley.   (.»4.    HH.  Buffalo  Co.    v.   Cruini 

Bissell    v.    Foss,    :?3."».  Bullion    Co.     v.    Cn                          1U2. 

Black    v.    Flkhorn    Co..    1  18,    -71.  P.HI. 

Blackburn    v.     Portland    Co.,    47!>.  -    V.      Kureka      Co.,      HJI. 

•1X1.  867, 

Blackmarr    v.    Williamson.    2'.i2.  P.ullis    v.    Noyet,    295, 

Blackmore    v.     liHll.v.    2  If,.  Bunker    Hill   Co.,       v.    Kmpir. 

Blackmer   v.    Summit    Co.,    829,  i«;.     133,     KM.     I7'.».     1M. 

Blake  v.   Butte  Co.,    1 .',»;.  494. 

-  v.      Thorne,     80,       127.  Burke    v.     McDonald.     1«5.    36,    29, 
Blen    v.    Bear    liiver    Co.,    283.  163,    345,    180, 

Bliss    v.    Kin-do,,,.    254.  Burkliard    v.    Mitchell.    2 

Block  v.    Murray.   265.  Burnham    v.    l-'reeman,    198. 

Bluebird  Co.   v.    Largey,    H',5.    p.m.  r.usl.v    v.    Centurv    Co.,    --"-S 

v.     Murray.'    |sj.     :;72.  Bush'  v.    Pioneer  Co..    36i.. 

Boggs  v.   Merced  Co.,   144,   146.  Bush    v.    Sullivan.    &&. 

Boileau  v.  Heath,  2<>»;.  Busk  irk    v     King.    :'.64. 

Bonanza   Co.  v.   Golden    lit  ad  Co.,  Butler    \.    Rockwell,    282. 

77.  Bun.-  CO.  \.  Barker.    44.    1M2.     133, 

Bonner    v.     Meikle.    477.  135,    Ixl. 

-  v.  Kio  Grande  Co.,  2u::.  \      Boston  Co.,   368. 

Bonson   v.    Jones,    241.  v.    Frank,    10,    260. 

Book   v.    Justice    Co.,    30,   53  v.  Merriman,  223. 

57,     102,    111,    153,    157,    164,     *—   v.     Montana     Co.,     2<»;;. 

166,    190,   481.  232,   335. 

Boston  Co.   v.   Montana   Co.,   187,  -              —  v.   Sloan,   224.   227. 

271,    364,    367.  v.  Societe,   K54.   1X4. 

Bradbury    v.    Davis,    305.  —  v.  Vaughn,    ll»5. 

Bradford   v.   Morrison,    10.  -   in   re,   460. 

Bradley  v.   Harkness,   198.  Butterfield   v.   Nogales   Co.,   365. 


T  AT.I.K  -  El  CITED.                                    543 

Byanl  v.   ii.iim.->.   282,  Cherokee  Co.  v.  Brithm.  :::.r, 

Byrne  ;-ry    Va!.    Co,    v.    Floivm-e    Co., 

Mm  -a-,.    Co,    v.    Fi.l.-liiy    c.... 

•a   v.   Bayaud,  child,  r-,   \     NVely,   261. 

caldw.'ll    v.    Fulfil.    241.  Miisholm   v.    Eagle  Co.,   337,  378. 

v.    Portland.   L-.II.  Christy  v.  Campbell,  284. 

Calhoun     «                       ax     Co.,  14.'5.     Chung    Kee    v.    1  >avidson.    260, 

::,::.    204,  chmvhill    v.    More. 

Callahan    v.    .!.-,:  Cjril    v.    Chirk.    884. 

Calumet    Co.    v.   Phillips,  328.  cisn:i    v.    Mallory.    ."."-. 

camhers    v.    I.owry.  Clark    v.    American    Co.,    L'7v 

'ii    v.   Seaman.  439.  -  v.    r.arnard. 

U'll    v.    FJl.'t.    45,    250.  -  v.     Buffalo     Hump     Co., 

v.     Golden     Cycle  Co.,        328. 


. 

-  v.  Fit/.tf.>r:ild.    171. 

:ankin.  87.  -  v.  Nash.   204. 

Mirer  Bow  Co.,  207.    -  \  Wall,  299. 


ilngton   Co..   :?.".'.».  Clarm.   v.    (Irnyson,    281. 

•  •ar.l.-lli     v.     Comstock     Co.,     U«'n.  clary    v.    lla/liit.    L45,    L"-1::. 

361.  Clav.-rin-    v     Clavcrhm. 

in  v.   Freeman,   7:t,    181,  n.-ar    Wai.-r    Co.    v.    San     Gtarde, 

Carney  \.  .\ii/..na  Co.,   n-i.  78. 

CN-ary    v.    Skilli.-h.    L'us.    286.    28l, 
Carson   v    Hayes,  230. 

citv    Co.     v      Ntn-ih    Star  Cleopatra   Co.   V.    Dickinson 

145,     L68,     17::.  354. 

174,    177.  Clifton   c,,.    v.    I'v.    •_•::". 

Cart.                        ^alupi,    80.  rlipp.-r    Co.     v.     Fli     Co.,     228, 

.  ege,    224.  •  Id   v.    M«-> 

v.    rroducera  Co..    147.  rune   v.    Ju                      295, 

:i    v.    LuiiKiilin.    313.  M    v.    Ilini-li.     158,    ."»<»7. 

TJ  v.  Cady,  369. 

(Vntral    Co.    v.    E.    Central     Co..  Col..    < 

nan    v.    Curtis.    !•>;;.     m. 

chadhourne  v.  Davis,  93.  —  v.  Davis,  488. 

chamberlain    v.    Colllnson.    ::."•».  c,,iii,.|-    v.    M  linger.    802 

Chambers  v.   Brown.  <  '•.llins   \     M.Kay.    278 

-  v.  Chester  -  v.   Smith,   297, 

-  v.  Harrington.  ]«•].  Coiman  v.   Clements,   6,  94.' 

v.   Jones,   144.  Colo.    Cent.    Co.    v.    Tmvk,    175, 

Champion   «                   MS.   Wyoming  177,   352. 

Co.,    154,    478.  c,>io..  Coal  Co.  v.   TT.  S.,  140.  208, 

chapman  v.  Toy   Long,   11  \     Tryor.    i_".»i 

Chnppius    v.    Hlaiikman.    -Jill.  Colo.    I.    \Vks.    v.    Taylor.    -JC,.-,. 

chariton   v.    Kelly.    214.  Colo.    Midland    K\.    rs,    O'Brien, 

Charter    Oak     Co.     v.     Stephen*,  858, 

cohimhia   c<..   v.   Dnchei  s.   •_".».  86, 

Chatham    Co.    v.    Moffat,    283.  48,    60. 

man    v.    Half.    L'30.  Columhus    Co.    v.    TurkiT.    L1::". 

v.    Hart.    I  r,n.    177.    ;;r,n.  Con.-   v.    Koxana    <',,..    255, 

\     Shreeve,  35.  41.    r_"_'.  Conn  v.  Oberto. 

182,     188,    HJ4,    166,    184.    850,  Connolly   v.    Hugh.>.    848,    »'.•:: 

Conrad  v.   Snglnaw   Co.,   - 


544 


TAP.T.E  OF  CASES  CITED. 


Cons.    Channel    Co.    v.    C.    P.    R. 

Co.,    204. 
Cons.    Coal    Co.    v.    Baker,    259. 

v.    Peers,  -298. 

Cons.   Gregory   Co.   v.   Kaber.   •"•-'•> 
Cons.    Rep.    Co.    v.    Lebanon    Co., 

14,   22. 
Cons.   Wyoming  Co.   v.   Champion 

Co.,  155,  163,  174,  184. 
Contreras  v.  Merck,  94. 
Consumers  Co.  v.  American  Co.. 

300. 

Conway  v.    Hart.   27,   122. 
(•(.(.per   v.    Roberts,    244. 
Coosaw   Co.   v.  Carolina  C« 

v.   Farmers  Co.,   868, 

Copper     Globe     Co.     v.     Allmann, 

41,  60,  78,  83,  86,  347. 
Corning  T.  Co.  v.  Pell,  250. 
Cosmopolitan  Co.   v.   Foote,   178. 
Cosmos    Co.    v.    Gray    Eagle    <  •«•.. 

848. 

Costello   v.   Muheira,   349. 
Conrchaine   v.    Bullion   Co.,    87, 
Cove  v.  N.  Y.  Co..  L".t:>. 
Cox   v.   Clough,  374. 

v.   Nat.   Oil   Co.. 

—  .v.   Prentice,   378. 
Craig  v.   Roberts,   208. 
v.    Thompson,     52,     82. 

!>4.    133. 

Crane   v.    Salmon,    305. 
Crane's    Gulch    Co.     v.     Scherrer. 

223. 

Craw   v.   Wilson.   ."."I. 
Cra\\  ford    v.    Kellevue   Co.,    !".'."•. 
Credo  Co.   v.    Highland  Co.,   77. 
Creede    Co.    v.     Uinta    Co.,     253. 

255,    257. 

Crescent   Co.  v.   Silver   Kin 
Cro?sus  Co.  v.  Colorado  Co.,   •".:. 
Cronin    v.    Bear    Creek    Co.,    482, 

485. 

Crowley   v.   Genesee  Co.,    329. 
Crown    Point    Co.    v.    Buck.      1«. 

173. 

v.     Crismon,     47,      104, 

110. 

Cullacott    v.    Cash    Co.,    56. 
Cunningham    v.      Pirrung.    12.'*. 
Currie  v.   Jones,   363. 

J)aggett   v.    Yreka    Co.,    173,    18.">. 
Dahl    v.    Kannheim.    L'ur,.    •_••_> 7. 


Dangerfield   v.    CM  Id  well. 
Darger   v.    Le   Sieur    77. 
Park    v.    Johnston.    L".i(.». 
Davidson    v.    Fraser,    4.T.. 
I)a vis   v.    Brown  C'y  Co.,  302. 

v.    Dennis,   349. 

-  v.   Gale,   195. 

-  v.    Graham.    358. 

-  v.   Shepherd,   4»;.  :>T:.. 

-  v.    Weibbold,    14.-,.    243, 
247. 

Dayton    Co.    v.    Seawell,    1M4. 

Del.ris  Cases,   L'::::. 

De,  ney     v.     Mineral     Cr.     C( 

4:..    li'-J.    1 :;:',.   484,   486,   491. 
D<  iTehack    v.    Hawke.    1  15,    •_'»»;. 
i»«    Graffenried  v.   Sava^.   298. 
Delude    v.    Long.    ll'n.    li_>7. 
Del     Monte    Co.     v.     Last     Chance 
46,    59,    150, 

-  v.  New  York   Co.,    177. 
De    NO..II    v.    Morrison.    !••]. 
D.-piiy    v.    Williams.    90, 

Derry    v.     ROM,    '.'". 
Dil.l.le    v.    Castle    Chief    Co.,    11<». 
Diirnan     v.     Newlin. 
Dillon    v.    Bayllss,    80. 
D.-dgo   v.    Marden.    I'.c.i. 
Doe  v.  Sanger,  17L'.   177 
v.    Ty ley.    80. 

v.     Waterloo    Oo 

16,    48,    58,    135.    i:,7.    1  «',<;.    17«;. 
184,    282,  311,  480,   489. 

v.   Wood.  298. 

Doherty   v.   Morris.   90,    10<>;    126. 
Dolan   v.   Passmore,   7.. 
Donahue    v.    Johnson,    368. 
Donnelly    v.    P.ooth    Co.,    •"•"••". 
Donovan    \\    Hananer.    L'T''. 

1  »..rr    v.    Hammond.    ' 

Doster   v.    Friedensville   Co..    -J«'7 

Dougherty   v.   Chesnutt.   .'{.".I* 

v.  Creary,  i»3.   L'Jii'. 

Dower    v.     Richards.     '_'  1  « . 
Dc.vle   v.    P.ui-ns.    :;oi. 

Drake  v.   Lady   Ensley   Co..   230, 
Driscoll    v.    Dunwoody.    359, 
Drnmmond   v.   Long.   ."..",. 
Ducie   v.    Ford,   495. 
Dnttield    v.    Rosenzweig,    o-"> .".. 
Dufresne  v.    N.    Light    Co.,   4!»1. 
Dugdale   v.    Robert  son.    .",71. 
Duggan   v.    Davey.    17<>.    17*;.    isi. 
Duncan    v.    Pulton,    KM.     1 


TABLE  OF  CASES  CITKI  > 


1  Hindus   v.    Muhlenberg,    353. 
Inmham-v.    Kirkpatrick,    212. 

v.   Seiberling, 

Dunlap   v.   Pattison,   57. 

Du   Pont   v.   Tilden,   314,  328. 

I  Hi    Prat    v.   James,   83,   101,    109. 

Dnr:inr    Case,   188. 

Urn-ant  T.   Comegys,   277. 

-  v.   Corbin,   215. 
•    iMinmt  Co.  v.  Percy  Co., 

I  MII -an   v.   Redding,  477,  481. 
I  niryea   v.  Boucher. 

-  v.  Burt,  261. 
huinnell    v.    Dyer,    60. 
I»yk«-    v.    Caldwoll.    1'."; 

f  v.  Nat.  Tr.   Co 

v.  Whyte,  259,  34-.'. 

in   v.   Bashford,  265. 
v.   Friend 
Cent.    Co.    v.    Central    Co., 

Aood  v.   Standard  Ca,  265. 
i   v.   N  orris,  88. 
Eberle   v.   Canuchael,    102. 

ille   v.    Lt  ,    374. 

Krlips-    c.,.    v.    Spring,    156. 
Kdsall    v.    M.-rrill. 

•  Is    v.    Allouez   M.   Co.,    230. 
!•:-.•   v.    Kille,    : 

man,  82. 

V.      IlMl-Srsho,.     Co..      1    IT.      1   1!I. 

ro-Magnetlc  Co.    v     Van    AU- 
k.-n. 
Ellet  v.  Campl.Hl.    »:,.   •_.. 

<<m  v.  McWhirt.-r.    7.   109. 
Km  ma    Mine   Case,   360. 
Km  pi  re  Co.   v.   Bonanza   Co.,   352. 

v.       Bunkrr     inn      Co., 

144.    150,   161.    184. 

— v.  Tombstone  <\>.,  180. 

English  v.   Johnson,   22.  87. 
Ennor   v.    Barwell,    371. 
Enterprise  Co.  v.  Rico-Aspen  Co., 

250,    256,    257. 
Kquator  Co.  v.   Guanella,  295. 

v.  Marshall   Co..    I 

Krhardt  v.  Boaro,  26,   27,  34,  47, 

86.    109,    250,    347,    350,    362, 

367. 

E i  nest  v.  Vivian,  362. 
Erwin    v.    Perego,    29,    131. 
Erwin's    App.,    206,    207,    232. 
Eureka  Co.  v.  Bass,  357. 

18 


• v.    Richmond    Co.,    141, 

162,   164,   172. 

1 'airplay  Co.  v.   Westou,  200. 
Karmington   Co.   v.    Hhymney   Co., 

Faxon  v.  Barnard.  82,  8t>.  S4& 
Fee  v.  Durham,    1-4. 

I-YIton     v.     Wrst     CO,    880, 

Ferris  v.    Coover,   90. 
1-Yrnim    Co,    v.    M»-MilU-u.    181. 
Field   v.    Beaumont,    860. 

v.   Grey.   347 

—  V.  Tanner.    1 U     l.»:;.    TJ4. 
Kim-rty    v.    I-'rh/.    L'7r,,    880, 
First    Nat.    M.    Co.    v.    Altvai.i. 

110. 

Fisk   M.    To.    v.    K...I.    l!»3. 
Fissure    Co.    v.    Old    Susan     <'«>. 

78,  79,   102,   - 
Fitzgerald   v.   Clark,    n,j 
Fitzpatrick    v.    Montgomery,    229. 
Flagstaff  Co.  v.  Tarbet,  158,  173, 

180,   187. 

Flavin    v.    Mattingly,    79. 
Fleming  v.   Daly,   42. 
Flick  v.    liahns   Peak  Co..    102, 
Florence  Co.  v.  Orman,   L".'7 
Foote  v.  National  Co.,  41. 
s  v.  Gracey,  8,  259. 
1   v.   Campbell,   71. 
Forderer  v.   Schmidt,   120. 
Foster   v.    Lumbermens   Co.,    207. 

v.  Weaver, 

420    Mining    Co.    v.    Bullion    Co., 

374,    375. 
Fox  v.   Hale  Co.,  338.  378. 

v.    Mackay,    338. 

v.   Myers,   27,   30. 

Freezer    v.    Sweeney,    221. 
Fremont   v.    Seals,    312. 

v.   U.    8.,   312. 

French    v.    Lancaster,    336. 
Fri.-l   v.   Kimberly,  356. 
Frisholm    v.    Fitzgerald,    134. 
Fuhr  v.  "Dean,  298. 
FnlhT   v.   Harris,  6,   128. 
v.      Swan     River      Co., 

195,    230,    363. 
Fulmers  App.,    334. 
Fulton    Co.     v.    Wilmington     Co., 

358. 
G.    V.   B,   Co:  v.   Bank.   261,   315, 

327. 


546 


TABLE  OF  CASES  CITED. 


Galbraith  v.   Shasta  Co.,  r>6,  146, 

275. 

Gale   v.    Best,    207,   243. 
Galloway   v.    Blue   Spgs   Co.,    260 
Gamer  v.   Glenn,   76,   79. 
Garcin   v.   Penn  Co.,   278. 
Garfield   Co.   v.   Hammer,   82. 
Garrard  v.  S.  P.  Mines,  145. 
Garthe  v.    Hart,   121. 
Garvey   v.    Elder,    104. 
Gaylord    v.    Place,    lii1:.'. 
Gear  v.   Ford,   100. 
Gelcich   v.    Moriarty.    -4.". 
Gelwicks   v.   Todd,    T.»x. 
Gemmel    v.    S\v;iin.    L's.    :;  1 
Genett   v.    Delaware   ('«>.,    JMI;. 
(venter  v.  Conglomerate  Co.,  •"•-'.». 
Ghost   v.    Shuman,    :'..'.». 
Gibbon   v.   Atkinson,    ^(.».~>. 
Gibson   v.    Anderson,    ."..".«;. 

v.   Chout(>;ni,    1 ."..".. 

Giffin   v.   Pipe   Lines,    Ml. 
Gildersleeve    v.    NYw      M<-\.     CoM 

313. 

Gill  v.  Weston,  212. 
Gillis   v.   Downey,   98. 
Gilpin   v.   Sierra  Nevnd:i   <',,..    17«>. 
Gilj)iu    M.    Co.   v.    Drake,   46,    53, 

354. 

Ghiocchio    v.    Amador    Co.,    198. 
Girard  v.  Carson,  38.   850. 
Gird    v.    California    Co.,    36,    72, 

7!>.    ini.  I'll'.  215. 
Glacier    Ml.    Co.      v.    Willis.      270, 

374. 
Glasgow      v.     Chart  iers     Co.,     03, 

L".IL'. 

<;i;iss  v.  Basin  Co..  r.  i. 

Gleeson   v.    Martin    Whit.-   <',,..    •_'_'. 

4<5.    82,    101. 

Globe   Co.    v.   Tennessc.-   Co.,    ::.".'.'. 
Glovn-    v.    M.-inila    Co.,    ::L".>. 
Godfrey    v.    Faust.     loo. 
Gohres    v.    Illinois    Co.,    16,     45, 

215. 

Goldberg   v.    Bruschi,    110. 
Golden  v.  Murphy,   165,  373. 
Golden    Fleece    Co.    v.    Cable    Co., 

.">,    158,    345. 

—  R.    Co.    v.    Buxton    Co., 
353. 

—  Terra     Co.     v.     Mahler, 
29,    37. 

Gold   Hill   Co.   v.   Ish,   244. 


Gold     Ridge    Co.    v.     Tallmaage, 

202. 

Gonu  v.   Russell,   22,  46,   106. 
Goodwin  v.  Colorado  Co.,  332. 
Gordon  v.   Darnell,   276. 
Gore  v.  McBrayer,  6,  25,  58. 
Gorman  Co.  v.  Alexander,  309. 
Grand    Cent.    Co.    Mammoth    Co., 

144,    164,   166,    184. 
Gray  v.  Truby,  43. 
Gray   Copper    Led.-.    134. 
<Jray     Lumber     Co.     v.     Garkins. 

364. 

Great    So.    Co.    v.    Loj::m.    gl 
Gn-at     Wrst    Co.    v.    \Voo<|ma>    Co.j 

'_'  ^ .". . 
Great    Western    Co.     v.     Hawkins. 

205. 

Greer  v.   Heiser,   !!».".. 
Gregory    v.    Pershbaker.    S3.    21O, 

347. 

Gr«-y   v.   Northumberland,   in1.!. 
Gi-iilin     v.     Hurley,    264. 
Gruwrll    v.    Rocco,   310. 
Guild   Co.    v.    Mason,   338. 
Guma«T     v.     < 'ripple     Creek     Co., 

330. 

Gurney   v.    Brown,   38,   466. 
Gwillim    v.    l>oiinellan,    38,    i:;.". 

Habeler  v.  Rogers,  338. 
Hadley   Co.  v.   Cummings,    265, 
I  (aim  v.  James,   TO. 
Main    v.    Matn-s.    li.'.T,    346. 
Hall    v.    Ahraham.    2J)S,   352. 

v.    Arnott,    133. 

v.      Duke      of      Norfolk. 


376. 


v.    Hale. 


v.    Kear'ny.    1  •'•_-.    i  ]n. 


\ .    i\«'.i  rnj  .     i  "_. 
I  la  Hack*    v.    Traber.    rjs. 
Hamburg  Co.  v.   Stephenson.   'JM7. 

289. 
Hamilton   v.    Ely,   360. 

v.   Nevada    Co.,    ">74. 

Hammer   v.    Garfield    Co.,    7»',.    77. 

94,    Ml  1. 

Hammon  v.  Nix,   260. 
Hancock   v.   Keene,   358. 
Hand  v.  Cook,   58. 
Handy   Ditch   Co.   v.   Louden   Co., 

195. 

Haiinan    v.    Seidentopf,    268. 
Hanson   v.   Fletcher,    16,   5H.    7«J. 


T.xm.K  .  'K  CA8B8  CITED.  547 


v.    Bar..  11.      .  Hic-ks    v.    Anit-riran    Co.,    363. 

Hiiniin    Lode    Cas»».     (Sec    Pollard  ---   v.    B.-l! 

Iliirsrins   v.    California    Co., 

Harkiu-ss    v.    Burton.    '.»•_>.  Highland  Boy   Co.  v.    IVuu-h.    868 

Harlan    v.    Ilarlan.    841.  --  v.    Stickily      208,    '-'04. 

Harley    v     Montana    •  Hill   v.    King,   230. 

Harrington    v.    chambers,    31,    32.  --  v.      Standard      M.      Co.. 

I.M.  490.  281. 

Harris   v.   Balfour   Co.,   .'{.".T  Hindson  v.    Markle.   230. 

—  v.      KM'.  10.  Hines  v.   Mil 

348,    350,  Hirschler    v      Mi  Kendricks,     101, 
--  v.    Helena    Co.,    479.  108. 

—  v.     Kellogg,     11".     ill.  Hjelm  v.   Western   Gr.  Co.,   : 
810,  Hoban   v.   Boyer,  46. 

•rd     Co.     v.     Cambria     Co.,  Hobart   v.    Ford,    -"-' 

1  1..  n  man    v.    Beecher,   471'. 

Hartman    v.    Smith.    I'.".''.,    238.  Ih.  II.  rookr    v.    Harrington.    Lift, 

Ilarv.y    v.    Kyan.    7.  Honak.-r     v.      Martin.      H»o.       107. 
-  v.   Sides  Co.,  206.  i_:: 

\\irth    v.    Mutch.-r.     H'..     »."•.  HIMH!    v.     Hampton    Co.,    32IV 

Ha\vkin<   v.    S|M,kan.-  Hoosac   Co.    v.    Donat.    20& 

HawN-y    v.    iMll.-r.    :,  l|,,in,.r    v.    Watson.    -H. 

Co.,     71,    87,  Horsky   v.    H.-lma    Co.,    8*fc 

—  v.   Moran.   JIT 

llawiayn.-    v.    Bourn»«.   329.  n..|v>t    v.    Shea.    :;74   . 

Hawxluirst     v.     Lander,    87.  ||..r-\v.-ll     v.     Kui/.    S'J.     1TJ. 

.,nl    v.    M.-i.'ull.    '.'".    LM.)S. 

Bgnino,      •_'.'.      l«ii».  Hosmcr    \.    Wyminj:    Co.,    2T7, 

177  H..V.  v.     Howe's     Ass'n.. 

Hayn.-s    v.    I'.ris,  •..,-.    1  Hi.    1  17.  ::7J 

I    v.    Ku|.|>  18,   878  Howeth    v.    Sull.-nir.T.    51,    185, 

\.    Bun.  Hoi    v.   Altoonn 

lain    r,    M.-CmmitY. 

v      ITallej     V'iev     Co.,  iiukill  --'I 

'.T  Hulsi    v.    l>o«-rstlrr,    r_'7. 

ll.-illiim    v.    ll.,]y    TerriOT   '  llumhinl    \.     Dt 

1  1.  -in/.'    v.     BOSI..II    «  Humphivys    V.    Mooivy. 

Hum     v.    Kur.'ka    (lulch,    846, 

II.  It.  -  v.    McNainee,    857, 

ll.-l.na    CO,    \      BanU<  .  -  V.    Tat.  'hin.     124. 

—  v.    Spratt,    J"l.    204,  -  v.    Steese.    U1^ 

.in    \      Kodes,    148.  Hutchinson    v.    Klin..    241, 

H.n.l  Holy    Cross    Co.,  Hyman  v.    Wlu-.-i.-r.    H>«J,    ir,7. 

Il.'rraocilla    v.    Hubhell,    2  Iba    v.    Cent.    Assn.,   487. 

Herriman   Co.   v.   Butterti.'ld.   ::74  Idaho  Co.   v.   WincueH,   205. 

Herron   v.    Eagle  Co.,   10.  Ingemurson   v.    Coflfey,   34. 

Hersey    v.   Tiilley,   330.  Ingram  v.   Golden  Co.,   294. 

Hess  v.  Winder,  15,  22,  348,  362.  Integral    Co.   v.    Altoona    Co.,    93, 
Hesser   v.   Chicago  Co.,   339.  350. 

Heydenfeldt    v.    Daney    Co.,     143,  Iron  Silv.-r  c,,.   v.  Campbell,  143, 

245,  171.    184,    226,    227,    461. 

Ilickey   v.   Anaconda    Co..    23,   81,  -  —  v.    Cheesman,    166,    167, 

99,    140.  186. 


548  TABLE  OF  CASES  CITED. 


v.     Elgin     Co.,     47,     59,    Kahn    v.    Old    Telegraph    M.    Co.. 

172,   187,   191.  145.   . 

v.   Mike   and   Starr   Co.,    Kannaugh   v.   Quartette  Co.,   138. 


165,   171.   224,   225.  Keeler  v.   Green,  298. 

Irwin   v.    Davidson,    360. v.   Trueman,    10. 

v.    Strait,    199.  Keppler  v.   Becker,   486. 

Isom  v.   Rex  Co.,  284.  Kelly   v.   Fourth   Co.,   314. 

Ivanhoe     Co.     v.     Keystone     Co.,  Kendall  v.   San  Juan  Co.,  336. 

245.  Kendrlck   v.   Colyer,   284. 

Kern   Co.  v.  Crawford,   218 

Jack  Harvard  Co.   v.   Continental  Kevern  v.   Prov.   Co.,   357. 

Co.,  360.  King   v.    Amy    Silver    Smith    Co.. 

Jack  Pot  Lode,   191.  173,   175. 

Jackson  v.   Dines,   310.  v.  Edwards,   107. 

v.    McFall,   483.  v.  Mullins,  363. 

v.   Prior   Hill   Co.,   121.     v.  New    York    Co..     1M 1. 

v.    Roby,    101,    114,    345,    v.  Thomas,    246,    :'.7.~i. 

492.  Kinney  v.  Cons.  Va.  Co.,  r,. 

Jacob  v.  Day.  203.  v.  Fleming,   53,   93. 

v.    Lorenz,    195,    199.         v.  Lundy,    123. 

James  v.  Emmet  Co.,  356.  Kinsley  v.  New   V.   CQ.,  100. 

Jamestown    Co.    v.    Egbert,    302.  Kirk   v.    Meldrum,    88,    215,    218, 

Jantzen   v.    Arizona   Co.,   310.  219,  493. 

Jefferson    Co.     v.     Anchoria     Co.,  Klein  v.   Davis,  360,  362. 

178.  Kleppner  v.   Lenxm.    -•'« 

Jeffords  v.   Hine,   148.  Klopenstine    v.    Hays,    101,    lor,. 

Jennings  v.  Beaje,  365.  Knox  v.   Higby,   259. 

—  v.    Rickard,    301.  Koons  v.  Bryson.  348. 

Jennison   v.   Kirk,    194.   195,   201.  Kramer  v.  Settle,  101,    !'•!>. 
Job  v.  Potton,  299,  334. 

Johnson  v.  Buell,   158.  Lacey  v.  Woodward,  104. 

v.    Munday,   481.  Lacustrine    Co.     v.    Lake     Gunno 

v.   Sage,   328.  Co.,  206. 

v.   Young,   94,   113,   125,  Lacy  v.   Gunn,   315. 

488.  Laesch   v.   Morton,   204,   335. 

Johnstone   v.    Robinson,   299.  Lngarde   v.    Anniston   Co.,   328. 

Johnstown  Co.  v.  Butte  Co.,  365.  La   Grande   Co.  v.   Shaw,   270. 

—  v.    Cambria   Co.,   298.  Lakin   v.   Dolly,   145. 

Jones  v.   Jackson,   232.  —v.  Roberts,    145. 

v.   Pearl  Co.,   315.  —v.  Sierra      Buttes      Co., 

v.      Prospect      Co.,     42,  104. 

163,    175.  Lalande  v.   McDonald,   82. 

v.    Scott.    294.  Lampman   v.   Milks,    199. 

Jordan  v.   Duke,   87,   108,   348.  Lane   Co.   v.   Bausermnn,   357. 

v.    Schuerman,    133.  Lange  v.  Robinson,  214,  349. 

Joseph  v.   Davenport,  293.  Largey   v.    Bartlett,    283. 

Jos.    Taylor    Co.    v.   Dawse,    356.  Larkin   v.   Upton,   161. 
Junction    Co.    v.    Springfield    Co., 

Co      195 

Jupiter  Co.  v.  Bodie  Co.,  28,   29,    '1 v*.  Tyler    Co,    137     ir.r, 

52,  101,  187.  174,   177,    180,   494. 

Jurgenson   v.   Diller,   265.  Lauman   v.   Hoffer,   125. 

Justice  Co.   v.   Lee,  308.  Lavagnino  v.   Uhlig,   38,   58,   108, 


!.K  •  <l     «  ASES  CITED.  549 


!.a\v    v.    <,rani.    |  L..riin«T    v.     L<>\\  is. 

:\ce    \.    Gav  Low  Moor  Co.  v.   La  Biam-a.   356 

-  v.Robinson.    :i«»i.  I/owry    v.    Silver    City    Co..     12s, 

«'....    HJi.  i;ii'. 

ille   Co.   v.    Fitzgerald,    16.".  l.vtl.-   v.   Jaraes,  360. 
166,   176,   184. 

Letan                     Cons.   Republican  Mack   v.   Mack,  301,   8 

Co..    -7L'.  Mao.n     v      Tr..\vl.riilj:«'.     2t!l.    2!»1. 
-  v.   Rogers.   160, 

Ledoux   v.    Forester.    17.  Madison   v.      Ducktown      s. 

v.    Stahl,    i:.::,  234. 

Amonson,  208.  Ma  -ris    v.    i:irkn«>ll.    i  '.)."»,    r.".> 

W.    Carroll.  Magnet   Co.   v.    Page.    362. 

.eggatt    v.    Stewart.   16.  Mah.-r  v.    Slnill. 

.eblgb  Co.   v.  Bamford,  283.  laby   v.    Rice,   474. 

—  v.  New  Jersey  Co.,  341.  Malecech   v.   Tinsley.   34. 

-  v.  Tn.it.-r.       338,       369,  Mallett    v.    Uncle    Sam    Co.,    10, 
378.  92. 

rg  v.   Brotherton  Co..  357.  Malone    v.    Big    Flat    Co.,    'J'.l 

.176.  Milon.y    v     King,    184,    353,    361, 

v.   Marsh,   -.71  364,  367. 

352.  -  v.   Love,   294. 

.iin.'   Lode  Case,  188.  :nim>tli   <v  's   A  pp.,  360. 

.inrnln    v.    K..il-er8.   229,    L'  Manninu-    v.    Kansas    Co.. 

in.l,  mann    \      Golden   Co.,    264.  -  v.    Strehlow.    480,    489. 

Jndsley   v.    Union    Co..  Manson  v.   Dayton,   278. 

.iitl.-    Dorrit     Co.     v.     Arapahoe  Manual   v.    Wulff.  308. 

102.  Manvill.-    v.    Parks. 

-  Gunnell  Co.  v.   Kimber.  Marburg  Lo«l.  .    i 

44,    HM.    lu-i.    107,    121.  -    v.    Dillon.   M. 

-    Josephine    Co.    v.    I'nl  Mars  v.  Oro  Fino  Co..    I'.H 
Marshall      v.     II:ini.-y      1'i-aK 

(  o.    v.    Amie  33,    86,   90. 


. 

Co..  Marshall   Co.   v.    Kinl.-y.   :;4«; 

v.      LitiN-     <'hlef     Co.,     Mariin.-/     v.    Karnshaw.    :i,**8. 

Marvin    v.    lin-v  _H. 

Srhuylkill    Ca    v.    i:  si.-^iii/.   277, 


. 
unto,   205,  •    \     \i 

il»er   v.   Trinity   Cluirrh.   ::  II 

..Mkh.  rell,    109.  Mat  hews  Co.  v.  Now   Kmphv   Co., 

—  v.  Johnson.  83,  8«,  J81,   294. 

N     Leeds.  367.  Matkov   v.    Daley,   123. 

-v.     Rollins,     100,     103,    Matlock  v.   Stone,  483. 


IL'1.    128.  itingly  v.  Lewisohn,   103,   485, 

—  v.   Wills,  59.  85.  313.  488. 

Lockwood   v.   Lunsford,   3(>0,   362.  Matulys      v.      Philadelphia      Co., 

•  lorroll.    1  242. 

Lohman    v.    Hrluirr.  Meagher  v.   Reed.   292. 

!onderry    Co.    v.    United    Co.,  Meehan    v.    Nelson,   303. 

80.  ilors  v.   Shaw,  356. 

Lon.>  Acre  Co.  v.  Swayne,   334.  Mercur  Co.   v.   Spry,   259. 

Lohmmno    v.    Helmer.  Merk  v.   Bowery  Co.,   277. 

Lonsdule   v.    Curwen,   371.  Merrltt    v.    Judd,    10. 

L.-r.l   v.   Pueblo  Co..   358.  Metcalf   v.    Prescott.   79,    80. 


550 


TABLE  OF  CASES  CITED. 


Meylette    v.   Brennan,   301. 

374,    490. 

Michael   v.    Mills,   39. 
Mickle   v.    Douglass,    242,    293. 
Mike    &     Starr     Case,     165,     17 1, 

224,   225. 

Migeon   v.   Montana    Ry.,   487. 
Miles  v.   Butte  Co.,   199. 
Miller   v.   Butterfield,   301. 

v.  Chester  Co.,   294. 

v.  Chrisman,     87,     122, 

135,    215,    282. 

-v.   Girard,   38. 


v.    Sinaw,   9,    243,,   312. 


v.   Hawley.  466. 

Mills   v.    Fletcher,    99,    103. 

—  v.    Hart,    127. 
Minah    Co.    v.   Briscoe,    128. 
Mineral     Farm     Co.     v.     Barrlck, 

Minnesota  Co.  v.  Brasier,  87& 
Minton  v.  La  Follette  Co..  865. 
Miocene  D.  Co.  v.  Jacobsen,  199, 

201,   363. 

v.   Lyng,   205. 

Miser  v.   O'Shea,   232. 
Mitchell    v.    Cline,    215. 

v.    Hutchinson,    216. 

Moffat     v.     Blue     Kiv.-r     Co.,     KS, 

122,   493. 

Molina    v.     Luce.    840, 
Mollie    Gibson    Co.    v.     Thatcher, 

272. 

Monroe  v.    N.    Pac.   Co..    354. 
Montague    v.    Laltay.    491, 
Montana    < 'o.    v.    I'.oMon    Co.,    14.'{. 

15Q,   184,  271, 
v.    Clark.    :,'.».    171'.    17«'». 

363, 

—  v.    Gehring,    L' 
v.    Livingston,    -•">'.' 

v.     St.      Louis     CO.,     272, 

— - — - — ~Ry.   v.   Migeon,   --L 
Montgomery  v.   Gilbert,   368. 
Montrozona  Co.  v.  Thatcher,  294, 

352. 

Moody   v.   McDonald,    354. 
Mooney  v.  York  Co.,   303,  355. 
Moore  v.  Ferrell,  360. 

v.   Griffin,   273. 

v.    Hamerstag,    57. 

-v.      Indian     Camp     Co., 


Moragne  v.  Doe,  335,  352. 
More  v.   Massini,  362. 
Moienhaut   v.    Wilson.    488. 
Morgan  v.   Tillotson,   114,   123. 
Morgenson  v.   Middlesex  Co.,  153. 
Moritz  v.  Lavelle,  301. 
Morris   v.    DeWitt,  359. 
Morrison    v.     Regan,  53,    58,    78, 

133. 

Morrow  v.  Matthew,  302. 
Morton  v.   Solambo  Co.,  57. 
Mosher  v.   Sinnott,   314. 
Mountain    Copper    Co.    v.    I.    S.. 

•j:;i. 
Mt.    Diablo    Co.    v.    Callison.    M 

100,  101.   I*;.',. 

Mi.   Kosa  Co.  v.  1 'a  IIII.M-.  228, 
Mt.    View   Co.   v.    MrFadden,    479. 
Mt.   Wilson  Co.  v.   r.url.rid- 
Moyle    v.    Bullene,    37,    38.     1 ::.",. 

246. 

Moynahan     v.     Trent  i  —  .     :'.."»."». 
Mudsill  Co.  v.  Watrous,  2,s:i.  :;7v 
Muldoon  v.   Brown,  80,  490. 
Mullan    v.    U.    S.,    1  Ml. 
Muldrick   v.   Brown,   30,   41. 
Murley  v.  Ennis,  26,  57.  98,  299y 

301. 

Murphy  v.    Cobb,   344. 
Murray    v.    llav.-rty. 

v.    Polglase.  99. 

Murray    Hill   Co.   v.   Hav«-nor.    1  11. 

349. 

Muskett   v.    Hill,    _".»'. • 
Miitrhmor     v.     McCarty,     38,     77, 

225, 
Ifyen    v.    Hudson    Cft 

v.    SjHiDiu-r.    '.MI. 
v.    \Vharton.    L".rj. 


241. 


-v.   Robbins,  147. 


McCann    v.    McMillan,   78.   89,   91. 
McCarthy     v.     Bunker     Hill     Co., 

231. 
v.    Speed,   80,    126,    227, 

248. 
McCleary    v.    Highland    Boy    Co., 

231,  234. 

McConaghy  v.  Doyle,  223. 
McConnell  v.  Pierce,  241. 
McCord  v.  Oakland  Q.  Co.,  115, 

335. 
McCormick   v.    Baldwin,    107. 

—  v.   Parriott,   103,  373. 


TABLE  OF  CASES  CITED.  551 


rnes,    187.  Newman    v.   Barnes,   493. 

\van    v.    MoLay,   81,   374.  v.    Newton,   487. 

Mi-I»rrmott   M.  CM.  v.   McDermbtt,  New    Mercer    Co.    v.    Armstrong, 
128. 

••maid  v.   Montana   Co.,   215.  New  River  Co.  v.   Seeley,   367. 
M.-KIiii:..tt    v.    Krojrh.    U»,    -1,    47.    New  York  Co.   v.  Rogers,  355. 

17::.  Nichols  v.   Mclntosh,   93,   '.14. 

.MvKv..y    v.    IlYinan.    r.T.    1 .",:?.    -J'.»l.  \n,.s    v.    K«>mi:m,    '.»!,    350. 

MrFaddon    v/Mt.    Vi«-\v    Co.,    336,  N,,    Mistak.-    Lode,  477. 

Nnnamaker  v.  Amos,  295. 

ters    v.    rirrsnn  Noonan    v.    ralrdoniu   Co.,    8< 

M.<iarrity    v.    Byington.    ml.  v     Tar. !«•,•.   :;7f, 

McGinnis    v.    M-IM-H.    29,    .::>,    41,  North  Am.  Co.  v.   Adams.  «.»-j.  «»:t. 

s6,    92.   99.    111.    112,    132,  198. 

489,  490.  N..rihinore   v.   Simmons.  90,   99. 

McGoon   v.   Ankeny.  North  Noonday  Co.  v.  Orient  Co., 

McOowan    r,    Bailey,   334.  _:.   -«),  31,  82,   n;::.  809,  348. 

Mclntosl.   v.    Price,   20,   79  North    Star    Case,    59.    144,    145, 

\     IJ..M..   291.  163.   173,   174,   177,   190, 

Melntyre  v.  Ajax  Co.,  338.  N«>t«>\vare  v.    Stearns,   201. 

—  r.    Melntyre    Co..    291.  Noyes  v.  Black,  82. 

McKay  \  ail,  92.  99,  Iu7.    v.     Mantle,      224,     22ft, 

v.  Neuslerr.    !'•:  228. 

M   Kee  v.  Brooks,  298.  :•   Co.  v.   Bruce,  302. 
M'-Kenzle   v.     Poor     Man     Mines, 

_7  "Oberto  v.   Smith,  93. 

M.-Klnley    v.     Mineral     Hill    Co.,  Occidental  M.  Co.  v.  Comstock  T. 

:*55. 

v.    Wlu-.-i.T.    58.  O'Conn.-ll    v.    rinnacle   Co.,   9. 

M<  Kinley  Co.   v.  Alaska  Co.,  21'.'.  ( )  l»,,nn,-II    v.    <;i«'iin.   :i2,   41.   79. 

O'Keefe   v.   caiinon,   •_••_•::.   L"J4. 

M.  Kinstry   vrf    Clark,   42,    82.  n'K.-ifT.-      v.      Cunnillfbtti,       232. 
M.  I.ar.  n    v      I'.vrm- 

McLaughhn   v     1 »,  I    K,  .    _•"»,    288.  Old  Colony  Co.   v.  Carrick,  283. 

—  v.  Thompson.  03,  301.  Old   Dominion   Co..    Haverly,   208. 
Mrl.ur.-    v.    Sh.-n.ian,    :;03.  I  MM    T.-l.     M.    < ',,.     v.    Ontral    Co., 

M.-Miii.-n  \.   Perron  Co.,  31, 493 

McNeely   v    s    is-nn.  nil  Co.,  335.  Olive  Co.  v.  Olmstead,   207,   214. 

\.-ii    v.    r.  Omaha    Co.    v.    T/Timr,    290,    Ml, 
M.-Ph.Tson  v.  .inline   if,.  ::t.   i«'s. 

150.  Omar  v.  Soper,  84,   135,  153. 

\I --Shan. •  \     K.nki.  ^ah  Co.  v.  McCaleb,  336. 

M<  Williams   v.    Winslow.   .",7.   493.  Ophir  Co.  v.  Carpenter,   199. 

nppenlander    v.    Left    Hand    Co., 

laara.  84,  85.  49  195. 

National    Co.   v.    Weston,   341.  Oreamuno  v.  Uncle  Sam  Co.,  90. 

n   v.   Champaigne  Co.,  98.  Oregon  Co.   v.   Trullenger,   199. 

Neuebaumor   v     \v..ndman,   87.  O'Reilly    v.    Campbell,    109,    310, 

iraan   v.   Drelfurst,   115.  311. 

vada  Co.   v.   Home  Co.,  28,  29,  Original  Co.  v.  Wlnthrop  Co 

87,   118,  Ormond  v.   Granite  Mt.  Co.,  373, 

—  v.  Miller,   214.  378. 

Newark  Co.   v.   Upson,   368.  Ormsby   v.   Budd,   283. 

New  Dunderberg  Co.  v.  Old,  352.  Oscamp  v.  Crystal  R.  Co.,  108. 


552 


TABLE  OF  CASES  CITED. 


Osgood   v.   Bauder,  355. 
Osterman  v.  Baldwin,  309. 
Otaheite  Co.  v.  Dean,   233,  364. 
Overman  Co.  v.  Corcoran,   27. 
Oviatt  v.  Big  Four  Co.,  199. 

Pacific  Co.  v.   Spargo,  176. 
Packer  v.   Heaton,  101. 
Page  v.  Fowler,  341. 

-v.  Summers,  301. 

Palmer  v.  Uncas  Co.,  264. 
Par.tzar   v.   Tilly   Co.,   356. 
Paragon  Co.  v.  Stevens  Co.,  123. 
I 'Mi-dee  v.  Murray,   153,   156. 
Parish    Fork    Co.    v.    Bridgewater 

Co.,  92,  297. 
I'.irker   v.    Furlong,   360. 
Parley's  Park  Co.  v.   Kerr,  6,  17. 
Parrot    S.     Co.    v.  .  Heinz*',     171. 

176,   360,   362. 
Parrott  v.  Palmer,   :jr,u. 
Patchen  v.  Keeley,   :i.~.i. 
Patrick  v.  Colorado  Co.,  338.    . 
Patterson   v.    Hewitt,   360. 
v.     Hitchcock,     no.     L'<;, 

33,    83,    141,    158,   160,   304. 
—  v.    Ogdt'ii.    -J"7.    I'll. 

: v.   Tarbell, 

Paul  v.   Cragnas,  292. 

Paull   v.    Halferty,    : 

Peabody  Co.  v.  Gold  Hill  Co.,  20, 

145,    146,    147,   373. 
Pelican    Co.    v.     Snodgrass,     107, 

121. 

Penn   v.   Oldhauber,   103. 
•Pennsylvania    Co.    v.    Bales,    346, 

485. 

v.   Smith,   276. 

v.  Thomas,  279. 

Penny  v.  Central  C.  Co.,  372. 
People  v.   De  France,  372. 

v.    District    Court,    335. 

v.   Page,   342. 

v.   Sloper,   342. 

v.  Williams,   342. 

Peoria  Co.  v.  Turner,   37,  445. 
Perego  v.   Dodge,   480,   481. 
Perelli   v.   Candiani,   126. 
Perry  v.  Acme  Co.,  293. 
Peters  v.   George,  356. 
Petroleum    Co.   v.    Coal   Co.,    302. 
Pfeiffer   v.   University,   203. 
Pharis   v.    Muldoon,    106. 
Phenix   Co.   v.   Lawrence,   82. 


Philadelphia    Co.    v.    Taylor.    I'.'-J 
Phillips  v.   Salmon  R.  Co..  *J<". 
Philpotts   v.   Blasdel,   272. 
Phipps  v.  Hully,  378. 
Pho3nix  Co.  v.   Scott,    1<>. 
Pierce  v.   Barney,   374. 
Pike's   Peak    Lode,    248,   460. 
Pilgrim     Co.    v.     Teller    County. 

259. 

Pioneer  Co.  v.  Shamhlin.   204, 
Pitts  v.  Wells,  357. 
Pittsburg   Co.   v.   Bail<-y.    -J7r,. 

v.   Glick,  378. 

v.   Greenlee,   L".»i. 

v.   Spooner,  327. 

Plummer     v.     Hillside     Co.,     1M 1 . 

294. 

Pocahontas  Co.  v.  William 
Pollard  v.  Shively,  51.  M 
Porter  v.  Noyes 

v.  Tonopah  Co.,   l-i . 

Portland  Co.  v.   1  l.ih.ny 
Possell    v.   Smith,   330. 
Poujade  v.   Ryan,   30,   7 
Power  v.  Klein,  363. 

v.    Sla.,    488. 

^idio   Co.    v.    r.ullis.    -J7T. 
Preston    v.    Iliint.-r,    78,    86. 
Price   v.   r.lnck.   294. 
Prince   v.   Lamb,   302. 
Prosser  v.   Parks,   6. 
Protector   Lode,    248. 
Providence  Co.  v.  r>mk..  78,   121, 

309,  311,  480. 
v.      Marks,      340.       17'' 

485. 

Puget  Co.  in  re,  378. 
Purdum   v.    Lnddin,    70,    78. 

Quigley  v.  Gillett,  110,  48. 
Quimby  v.  Boyd,  52,  80,  103, 

487. 

Quincy   Co.   v.    Hood,   355,    356. 
Quinlan  v.   Noble,   1!»4. 
Quinn  v.   Baldwin  Co.,  300. 

v.   Silka,   368. 

Quirk  v.  Falk,  198. 

Rader  v.   Allen,   147. 

Raisbeck   v.   Anthony,    162,    164. 

Rankin's   App.,    363. 

Rara   Avis   Co.   v.   Bouscher.    L'lj-J. 

Rathbuu    v.    Snow,    328. 

Raunheim  v.   Dahl,   138,   227. 


TABLE  OF  CASES  CITED.  f.n ,: 


Kawlings   v.    Armel.  Royston   v.  Miller,   101,   113,   126. 

485.  Rozecrans  Co.  v.  Morey,  330. 

Raymond  v.   Johnson,   301.  Ruble    Co.    v.    Princess   Co..   315. 

Raymond    v.    Johnson,   301.  Ruby   Co.   v.    Prentice,    330. 

Real  del   Monte  Co.   v.   Pond   Co..  Rush  v.   French,  57,  82. 

360.  Russell  v.   Brosseau,   107 

oa  Co.   v.   Bryant,   445.  — v.    Chumasero,    70. 
Red  Mtn.   Co.   v.    Essler,   335. 

R.  d    Winjr   Co.    v.    clays,    184.  Safford  v.   Flemmlng,   365. 

K  v.  Bald  Mt.  Co.,   -'  Bt   O.-iir    v.    Cash    • 

v.    Morgan    Co..    356.  St.   John   v.    Kidd.   6. 

Regan    v.    Whittaker,    246.  St.    I.oui*   Ca    r.    K.-inp.    Inn.    i<»i. 

:•    v.    Schroder,  i  i:..    ir,r>.    177,    -jn.    461,     t»;-j 

R.  mmington    v.    Bandit.    100.  —  v.     M«>iit;m:i      Co..      HM. 

haw  v.   Swltzer,  94.  178,    255,                                   872 

Resurrection   Co.   v.   Fortune   Co.,  495. 

353.  Salnu>n    v     Synx>nds.    •_•  I  l 

R.-vnolds  v.   Iron   S.  Co.,   225,340.  Salt    Lak»»    Co.    v.    chaimnan    Co 

v.   Pascoe,   37,   42. 

Riborado  v.    Ouang   Pang  Co.,   6.  Sampson    CM.    v     Schaad, 

v.    Kj:e,   277.  v.   Noble    36. 

—  v.    Rigley,    302.  Sand    Point    Co.     v.    Pan     Handle 

Ttidi  v.   Victoria  Co.,  335.  Co.,  199. 

Illng,   38.  Sands   v.    Cruikslumk.    1*7. 

254.  Samly    R.    Co.    v.    Whit  Hums.'.    .'!"•-. 

Hi. -hards. -n    v.    Lowe,   283.  San                           \      K .    «;      i; 

nichincnd     Ca     v      ICureka     Co.,  499. 

San    Miguel    Co.    v.    i:..nnrr.     isj. 

V.    Rose,    16.  I. a      Piirisiina      Co., 

Riddle   v.  -'.>5. 

Rills-  \     Iteckey,    r_v,. 

Ripl.y   \.    P«rl  i   v.   Alhambrt   Co  .   I't^ 

Risch   v     \\  is^-man,   87.    :.  Dlti    r.    K.-.-i.-r.   57. 

Riste  v.   Morton,   53.    l  r.».  s.-h\vai.  v.  Beam,  195. 
Hitter  v.  Lynch,  232. 

ing  Creek   Co.   v.    Anthracite  Searl.                    21  J.    L'28. 

Sears  v.  Tayim-.  «;.  s7.   ::  i:. 

DMa    v     Imperial   Co.,  236.  Seidler  v.    La    I 

Co.    v.    Johnson.  —  v.   Maxfleld,    7'.' 

Rockwell   v  tic   v.    Whit.-;-..    277 

is  v.   Cooney,   206,   233.  Severson    v     p.ini.-talllc  Co..   : 

Co.    v.    l  Seymour  v.  Fisher.  131,  13G.   138, 

Rose  v.   Lanyon  Z.   Co.,    L  •_>.-,«» 

———v.    Richmond    Co,,    145,  ghackelford    v.    BloM    Co.,   338. 

Rosenthal    v.    Iv,  <.    M5,  2SL/V  <5S5S2S    ID f  ft    490 

Hnft0viii.>   «',,    v     i(,\\  i    ciiii-h    Co  snarkey  v.  (  anainni,  .io,   ti.  4yu. 

1^  Shattuck  v.  Costello,   53,   121. 

Ross*  Oil  Co.  vs.  Eastham,  329.  S!»NV  v-  HoiSer;  293> 

Rough   v.    Simmons,   484.  ~J;,,Kello£f '     :1  : 

Roxanna    Co.    v.    Con  ^"'»    v     Minna,    ,'im ,   309. 

17»;.  Sheaffer's  App.,  367. 

i!    K.    Placer.   213.  sii.-j.anl    v.    Murphy,   73. 


554  TABLE  OF  CASES  CITED. 


Sherlock    v.    Leighton,    102,    110,  South  Yuba  Co.  v.   Rosa,   194. 

310.  Soyer  v.  Gt.   Falls  Co.,  356. 

Shively  v.    Bowlby,   499.  Sparrow  v.  Strong,  s.   25. 

Shoshone  Co.  v.  Rutter,  13G,  104,  Spelman   v.   Gold  Co.,    ::L".». 

166,   272,  480.  Spotts    v.    Gilrhi-ist. 

Shreve    v.    Copper    Bell    Co.,    3o.  spr.-mur  v.   Locke.  ::•','.'. 

163,    272.  Suihl    v.    VMM    Vl<«rk.    967, 

Sleber  v.   Frink.   !».",.  Standley   v.    Roberts,   '.".i:,. 

Sierra   Co.   v.   Sears,   360.  Stanford  v.  Felt,   !'.>'.». 

v.   Winchell,   84.  Stanley    v.    Mineral    rni.m.    24& 

Silent  Friend  Co.   v.  Abbott,   337.  State    v.    P.rrryman.    .'Ui1. 

Silver  Co.  v.   N.  C.   Sm.   Co.,  378.  v.    Hurt.    :\4'2. 

Silver    Bow    Co.    v.    Clarke,    138, v.    District    Court.     IT*,. 

143,   145.  :t7L». 

Silver    City    Co.    v.    Lowry,    131,  Steams-Roger  Co.  v.  P.n»wn.    '.'»T 

295,    492.  Steel  v.  Gold  Co.,  466,  487. 

Silver     Cord     Co.     v.     McDonald,  steele  v.  Tanana  Mines,  208, 214. 

355.  Steinbeck     v.     Bon     Ilomme    Co., 
Silver    Peak    Mines    v.    Hanchett,        283. 

113.  Si.-clsmith    v.    Garthm.    L".»7. 

Sisson  v.   Sommers,   39,   347.  stcnnvinder    Co.    v.     Emma    Co., 
Slavonian    Co.    v.    Perasich,    103.         n;. 

Slothower    v.    Hunter,     77,     121,  Stephenson  v.   Wilson.   :i7.",. 

465,    492.  Sterrett    v.    Northport    Co.,    234. 
Smallhouse  v.  Kentucky  Co.,  264.        376. 

Smart   v.   Jones,    206.  Stevens  v.   Gill,  164. 

Smelting  Co.  v.   Kemp.      (8cc  St. v.  Gr.  Central  Co.,    1-7 

Louis   Co.    v.    Kemp.)  v.    Williams,     162,     166, 

Smith    v.    Belshaw,   357.  361. 

v.    Kollrs.    L's-j.    :::.  I.  Steves  v.   Carson,  346,  492. 

v.    Cascnden,    79.  Btewarl    r,    I»')iiglas,  302. 

v.   Hill,   247.  v.    Gold   Co.,   309. 

v.    Idaho   Q.    Co..       ;  stinchfleld    v.     (Jill is.     154,     1 '•-.",. 

—  v.    Imperial    Co.,   4s_  187,    271,    272. 

—  v.    Jamison,    361.  Stinson    v.    llMnly.   298. 

—  v.    Mt.    Gulch    Co..    11<>.  stookbridjre    Co.    v.    Cono    Works. 
v.  Newell,  51,  54,  57,  78.         353,   372. 

—  v.    O'Hara,    198.  Stolp  v.  Treasury  M.  Co..   108. 

v.   Oxford   Co..   356.  Stone  v.   .Marshall   Co.,  :;:,::. 

v.    Reynolds,    27<l.  —  v.    Zucker,    200. 

v.   Sherman   Co.,   270.  Stone  Lode   Case.    (See  Iron    *n 

Smoke    House    Lode    Case,     143,        rer  Co.  v.  Elfjin  Co.) 

246.  Stone  Mines  v.  Southern  Co.,  378. 

Socorro  Co.  v.   Preston,  315.  Stonewall   Co.  v.  Peyton,  :>•;. 

Souter   v.    Maguire,    73.  Stoughton  v.   Leigh.   _!74. 

South    End    Co.    v.    Tinney,    98,  Strahlendorf    v.    Rosenthal,    355, 

125,    349,  .374,    375.  356. 

Southern    Cross    Co.    v.    Europa.  Strasburger    v.    Beecher,    110. 

Co.,    71.  Stratton  v.  Gold  Sov.  Co.,  254. 

v.   Sexton,  99.  S  t  r  a  1 1  o  n's      Independence     v. 

South     Nevada     Co.     v.     Holmes        Dines,  283,  354. 

Co.,   174.  Strepey    v.    Stark,    35,    132,    349, 
South   Star   Lode,   226,    247,   460.         350,   489,   490. 

South  West   Co.   v.   Smith,   355.  Strickler    v.    Colo.    Springs,,    195. 


TABLE  OF  CASES  CITED. 


565 


Strk-kley    v.    Hill.    ;J10,    483. 
.     v.     K.-rr     Salt     Co 

:*6l. 

Stuart    v.    Adams,   328. 

v.  Com.,   -'••". 

-senbarh    v.    Hank.    1'JT. 
Suffolk    Co.    v.    San    Miguel     <  «».. 

Sullivan  v.    Iron   Silver  Co.,   227, 
v.    Sharp,   489. 

Summerlin      v.      Fr«nn»Ti/.u      "Co., 

Sun   Dance  Co.  v.   Frost,   284. 
Sunnyside  Co.   v.   K« 

...y    v.    II a nl. -y. 
Sweet    v.    Webber,     4«,     S'2.     111. 

_an    v     Walk.T 

Table     Mountain     «',,.     v.     Strana- 

han 

Tabor  v.   Dexter,   163. 
Talbott    v.    King.    148,    145. 
Talmadge  v.   St.   John,   80,  88. 
Tanm-r    v.    Treasury    Co.,    255. 

Tartar  r,  spring  <  n-ek  Co.,  239. 
:•    v.    Mi.Mletnn.   79,   90. 

v.    Parentenu,    19,    55. 

v.  Thomas. 

TellurMe    | 

v.  Ayers,   8S1. 

v.    Hamilton.    2 

Terrible  Co.   \     Argentine  <'o.,  31. 

ory  v.  Mi  i 
Thalliiiann     v.     Thomas,    83,     88, 

128,   147. 

Thay.-r    v.    Sprat  t.    (24, 
Thistle    v.    Frost  berg   Co.,    348. 
Thomas  v.   Chisholm.  58. 

—  v.   Oakley,    : 
Thompson   v.   Jacobs,  96. 

v.    Noble,   IMJ 

V.    Spray.    r,s,    130,    135. 

v.   Wise  Boy   Co.,   264. 

Thornburgh   v.   Savage  Co.,  371. 
Thornton  v.   Kaufman,  485. 
Ticker  v.  Kler.  328. 
Tipping  v.  Bobbins,  299. 
Tischle  v.   Penn.. 
Tipping   v.    Robbins,    299. 
Titcomb   v.    Kirk,    201.    2U3. 
Tombstone    <  <>.    v     Way    Up    Co., 

166,  190. 


-T.  S.  Cases,  1M<; 
Tonopah  Co.  v.   Tonopah  Co.,   31, 

l.'io.    i:;i.    i ;{.-,.    ISM. 
Tornanses  v.   Melsing,   309. 
Townsend    v.    Peasley.    1  «.»•_'. 
Traphaireu    v.    Kirk,    207. 
Trade    Dollar    Co.    v.    Fras.  . 
Travis  Co.  v.  Mills,  231. 
Treadwell    v.    Via  ITS. 
Treasury  Co.  v.  Boss,  131. 
rredlnnlck     \.     i;.d    cloud    Co., 

263. 

Trevaskis  v.   Peard,  92,  94,  103. 
Trihay  v.  Brooklyn  Co.,  353,  357. 
Tripp    v.    Dunphy.    100. 
Trotter   v.    ll.vksher,  338,   378. 
Tuolumne    CO,     v.     Maier.     i 

Tinner   v.    Sa\vy«>r.    1  Hi.    11'.'.    ll'T. 

iTi.    IT:.. 

Tyee  M.    Co,    v     Langstedt.    874, 
Tyler    Co,     v      Last    Chance    Co., 

181,    17'.'.   372. 
Tynon   v.    Despaln,  194,  200. 

linta    Co.   v.    AJax   Co.,    25,   145. 
•  reede  Co.,  144,  155. 
rimer    v.    Farnsworth.    192. 
rni..n   «',,.   v.  Bank,  315. 

—  v.   Dangberg,   201. 

—  v.  Leitch,  36,  60. 
riiion  Oil  Co.  in  re,  215. 

I       IV    i:.v     CO,    v.    .larvi.    :io5. 
I'M  it. •«!    Merthyr    Co.,    352. 
i  .   s    \     Basic  M.  Co.,  525. 
— »  v.     Blarkliurn.     208. 

v.  Carpenter,  336. 

—  v.  Clark,  146. 

—  v.    Detroit   L.   Co.,  523. 

—  v.    Iron     S.     Co.,     100, 
146,  211,   228. 

-  v.  King,  147,  429. 

v.   Marshall   Co.*,    M»'». 

North      Bloomfleld 


Co.   231,  234. 

—  v.    Parrott,    m;i. 

—  v.   Rossi,   164,   207,  525. 
v.  San*  Pedro  Co.,  812. 

—  v.   Smith,   5. 

—  v.   Trinidad   Co.,   313. 
-v.     1'nited     Verde     Co., 


525. 


556 


TABLE  OF  CASES  CITED. 


-v.   Winona   Co.,   146. 


U.  S.  G.   Co.  v.   Pacific   Co.,   338. 
U.   S.  M.     Co.     v.     Lawson,     143, 

161,   495. 

Upton   v.    Larkin,    27,   37,   55,   79. 
v.    Santa    Rita    Co.,    36, 

46,   54,    98,   103,   HO,   484,   489, 

492. 

-v.   Weisling,   284. 


TJren   v.   Golden   T.    Co..   358. 
Utah    Co.    v.     Dickert    Co.,     103, 
128. 

Valcalda    v.    Silver    Peak    Mines, 

238 

Van  Buren  v.  McKinley,  6,  81. 
Vanesse   v.   Catsburg   Co.,    356. 
Van  Horn  v.   State,  212. 
Van  Wagenen  v.  Carpenter,   335. 
Van    Zandt   v.    Argentine   Co.,    31, 

42,    175,    368. 

Venture  Co.  v.  Fretts.   LM.»7. 
Vervalen  v.  Older,  260. 
Vietti  v.  Nesbit,  338,  378. 
Virginia   Co.   v.    Kelly,   241. 
Vogel   v.   Wnrsing,  52,  350,  361. 

Wakefield    v.    Sunday    Lake    Co., 

294. 

Wakeman    v.    Norton,    149,    184. 
Walker  v.   Pennington,   71. 
Walrath     v.     Champion     (• 

156,    172,    178,    187. 
Walsh   v.    Henry,   88. 

. v.   Mueller,   27,   50, 

Walton  v.   Wild  Goose  Co.,  221. 
Ward   v.    Carp   River   Co.;   2»;i. 
Wardell  v.  Watson,  241. 
Warner  v.   Benjamin,   354. 
Warnock  v.  De  Witt,  51,  60,  124. 
Warren   v.    Parkhurst,   231. 
Washburn  v.   Alden,   330. 
Waterloo  Co.  v.  Doe,  29,  42,  144. 
Waterman   v.   Banks,    277. 
Waters  v.   Stevenson,   352. 
Watervale  Co.  v.  Leach,  153,  160. 
Watson     v.      Colusa-Parrot      Co., 

232. 

v.    Mayberry,    37. 

Watson  Co.   v.   Jirmes,   283. 
Webb  v.  Am.  Asphaltum  Co.,  210. 

v.   Carlson,   80. 

Weed  v.   Snook,   28,  29,   214,   282. 
Weese    v.    Darker.    7.'i,    si1 


Welbold   v.   Davis,  375. 
Weill    v.    Lucerne   Co.,    272. 
Welch  v.   Garrett,   93,   199. 
Wells  v.   Davis,   78. 

-  v.  Leek,  302. 
Welsh  v.   Lehigh  Co.,   357. 
Wesling   v.    Kroll,    2J».". 
Western  Co.  v.  Berberirh. 
West  Granite  Co.  v.  Granite  Co., 

80. 
Westmoreland    Co.    v.     De    Witt. 

294. 

West  Point  Co.  v.  Reyin.-n.   ::»•.•_'. 
Wetzstein   v.   Largey,    268. 
WlH-eler  v.   Smith.   2 
-  v.   Walton   < 
--  v.   West,   297. 

CO,    v.    Kl.l.T.    281, 


,       .  . 

White  v.   Century   Co.,  338. 
---  v.   Lansing.   206,     •'•» 
--  v.   Lee,   218. 
White     River     Co.     v.     Langston 

110. 

White  Star  Co.  v.   Hultberf,    1<> 
Whltmer  v.   Schenk,   282. 
Whitm-y    v.    Ihisk.-ll,    26. 
Whittaker    v.    Lindhy.    274, 
\\i-ht    v.    Dubois,    139. 
Wilht'lm   v.   Silvester.    !."•:'.. 
Wilkins  v.   A  bell,  264. 
Willeford  v.   Bell 
Williams    v.    Kl    Dora    Co.,    -''•». 

-  v.    Gibson,    1M  1  . 

-  -  v.  Hawley,   ir,».   268 
---  v.   Long,   364. 
------  v.   McKinley,    329. 

--  v.  Morrison,  298. 
-  v.   Pomeroy  Co..   876, 
Williamson    v.    Jones,    334. 
Willitt  v.  Baker,  108,  481, 
Wills    v.    P.Iain.    121. 
Willson  v.   Cleaveland.   '.'! 
Wilson  v.   Alpine  Co.,  355. 

—  v.  Big  Joe  Co.,  292. 
-  v.    Gerhardt,    294. 

—  v.  Harnette,  373. 

—  v.   Henry,  375. 

—  v.      Triumph      Co.,      M. 
101. 

Wiltsee   v.    King  Co.,   37,   54. 
Winchester  v.  Davis  Co.,  337. 
Winters   v.   Hub  Co.,  330. 
Woleott    v.    Johns,    282. 


TABLE  OF  CASES  CITED. 


557 


Wolfley   v.    Lebanon  M.    Co.,    13!>, 

158. 
Wolfskill   v.    Smith,   93,   200,   212, 

284. 

\\olverton  v.   Nichols,  482. 
Wood  v.  Aspen  Co.,  311. 

v.    Eliwande   Co.,   93. 

v.  Saginaw  Co.,  329. 

Woods   v.   Montevallo  Co.. 
Woodside   v.   Ciceroni.   298,   302. 
Woodward  v.   Mitchell,   291. 
Woodworth   v.  McLean,   303. 
Woody    v.    Barnard,    103. 

v.    Hinds,    486. 

Worthen   v.    Sidway,    218. 

thington   v.   Given,   338. 
Wright  v.  Ascheim.  368. 

v.   Hartville,  478. 

v.    Killian,    103. 

v.    Lyons,    60,    81. 

\Ynlff    v.    MaiiiiH.   48ft. 


Yurwood   v.    Cedar    Canyon    Co., 

L'tiS. 


-v.    Johnson,    126,    127. 


York    v.    Davidson,  230. 

Yosemite      Co.     v.  Emerson,     7, 

iirJ.  488. 

Youghiogheny     Co.  v.      Hopkins, 

Young  v.  Bankier  Dist.,  284. 

—  v.   Goldsteen,   478,   481. 

—  v.    Northern    Co.,    260. 
Yreka   Co.   v.    Knight,    101.   350. 
Yuba  County  v.  Kate  Hayes  Co., 

181, 
Yunker   v.    Nichols,    200. 

Zerres     v.     Vaninn,     1*9,     7<».     71. 
121. 

7.ull:irs    v.    Kvans,    29. 


65S  INDEX. 


INDEX. 


Abandonment,  Page  89. 

Of  Possessory  Claim,  10 

Of  Ditch,  93,  199. 

Conditional,  92. 

Relocation  after,  120. 

Of  Tunnel,  256. 

Pleading,  94,  110,  487. 

Distinguished  from  Forfeiture,  91. 

Abstract  of  Title- 
In  Examining  Title,  304. 
On  Application  for  Patent,  434. 
On  Adverse  Claim,  471. 

Accidents,  355. 

Acknowledgment,  274. 

By  Individual,  267. 

By  Wife,  274,  305. 

By  Corporation,  275,  332. 

By  Attorney  in  Fact,  275. 

To  Contracts,  282. 

To  Articles  of  Incorporation,  316. 

Notary  Public's  Commission,  267. 

Acreage — 

Of  Lode  Claim,  448. 
Of  Placer,  222. 
Government  Price,  448. 

Adverse  Claim,  468.     See  Forms.     Ejectment. 

By  Known  Lode,  226. 

By  Mill  Site,  240. 

By  Tunnel  Site,  256. 

Connection  between  Suit  and  Application,  484. 

Ejectment  Supporting,  345. 


INMiX  55? 

Adverse   Claim — Continued. 

By  Whom  Verified,  473. 

By  Co-Owner,  474. 

Amendment  of,  476. 

What  Should  Adverse,  477. 

Proceedings  After  Determination,  493. 

Annual  Labor  Pending,  495. 

Statute  Concerning,  §2326,  510. 

Land  Office  Rules,  398. 

Form  of,  469. 

Complaint  Supporting,  482. 

Answer  in,  486. 

Certificate  of  Suit,  479. 

Effect  of  Failure  to  Assert,  138,  141. 

Waiver  of,  491. 

Affidavit— 

Of  Annual  Labor,  112. 
Of  Citizenship,  436. 
In  Land  District,  449. 
By  Agent,  450,  473. 

Agent — 

Location  by,  57. 
Lease  by,  293. 
Powers  of,  328. 
Adverse  by,  473. 
Process  Agent,  332. 
To  Procure  Patent,  449. 

Agricultural   Lands,  244,  516. 

Alaska,  500. 

District  Rules,  5. 
Location  of  Claim  in,  61,  221. 
Tide  Lands  in,  501. 
Timber  in,  525. 

Aliens,  308,  519. 

Amendment — 

Of  Location  or  Record,  129,  132,  177. 


560  INDEX. 

Angles,  49,  190. 

Annual   Labor,  94. 

On  Group  Claims,  101. 

Proof  of,  110 

By  Tunnel,  257. 

On  Old  Lodes,  95. 

Equity  of  the  Law  Requiring,  109. 

On  Placers,  113. 

On  Oil  Claims,  115. 

Pending  Patent,  98,  495. 

After  Entry,  98. 

Certificate  in  Lieu  of,  112. 

Time  to  Perform,  99. 

District  Rules,  95,  103. 

Pending  Adverse,  495. 

Pleading,  94,  487. 

Soldiers'  Claims,  12. 

Roads  and  Trails  as,  203. 

Apex,  167. 

Stakes  Must  Cover,  49. 
Survey  Presumed  to  Include,  149. 
No  Apex,  No  Dip,  187. 
Statute,  Section  2322,  508. 

Application  for  Patent,  418.     See  Forms. 
Land  Office  Rules,  386. 
Survey  for,  405. 
Circular  to  Applicants,  414. 
Adjoining  Claims,  432. 
By  Agent,  449. 
By  Corporation,  451. 
On  Surveyed  Lands,  458. 
For  Mill  Site,  451. 
Proof  of  Non-abandonment,  438. 
Cancellation  of  Entry,  444. 
By  Trustee,  465. 
Without  Record  Title,  465. 
Conflicting,  142,  466. 
Statute,  §2325,  510. 
Relation  of  Suit  to  the,  484. 


INDEX.  661 


Appropriation,  24,  25. 
Of  Water,  194. 

Arizona — 

Location  of  Lode  Claim  in,  62. 
Location  of  Placer  in,  219. 

Assay,  376. 
Assessments,  326. 

Association  of  Persons,  13,  215. 
Nominal,  14,  215. 

Asphalt,  210,  211, 

Attorney  in  Fact — 

Acknowledgment  by,  275. 
Power  to  Apply  for  Patent,  450. 

Blanket  Veins,  170. 

Boundaries — 

Staking,  45. 

Monuments   Control,    55. 
Immaterial  Calls,  78. 

Building  Stone,  212,  213,  521 
Bureau  of  Mines,  376. 
By-Laws,  318. 

California,  Location  of  Claims  in,  62,  221. 
Canadians,  Rights  of,  in  Alaska,  519. 
Children,  Employment  of,  344. 

Citizenship- 
Land  Office  Rules,  396. 
Form  of  Proof,  436. 


562  INDEX. 

Citizenship — Continued. 
Statute,  §2321,  507. 
Of  Corporation,  396,  437. 
Pleading  and  Proof  of,  310. 
Proof  by  Witnesses,  437. 

Claim.     See  Possessory  Claim,  Lode,  Placer. 
Acreage  of  Lode,  448. 
Acreage  of  Placer,  222. 
Length,  12-17. 
Width,  17-21. 
Side  Claims,  13. 

Divided   into  Lodes  and   Placers,  210. 
Possessory,  9-11. 
Right  to  Swing,  36,  132. 
Fractions,  59. 

Coal   Lands,  519, 

Coal  Mines — 

Drainage,  192. 

Penal  Regulations  of,  344. 

Colorado — 

Location  of  Lode  in,  23,  61. 
Location   of   Placer   in,   209. 

Commissioner  of  Mines,  376. 
Condemnation,  201,  204. 

Contract — 

Mining  Sale,  275-282. 
To  Sell  and  Buy,  279. 
Prospecting,  299. 
Working,  302. 

Conveyance,  2.66. 

Before  Record,  135. 
Of  Water  Rights,  198. 
Agreements  for,  275-282. 
In  Examining  Title,  305. 


INLK.X 

Conveyance — Continued. 

Form  of  Warranty,  266. 
Form  of  Quit  Claim,  268. 
Subdividing  Lode,  270. 
Acknowledgment,  267,  274. 
Escrow,  281. 
Mining  Deed,  269. 
Witnesses,  273. 
Short  Form  Deed,  269. 
Wife's  Signature,  273,  305. 

Corporation,  313. 

Location   by,  58. 

Foreign,  331. 

Citizenship  of,  396,  437. 

Corporation  Deed,  315. 

Filing  Fees,  325. 

Form  of  Articles,  315,  323,  324. 

Amendment  of  Articles,  330. 

First  Meeting,  318. 

By-Laws,  318." 

Seal,  315. 

Annual  Report,  321. 

Smelting  and  Sampling  Companies,  324. 

Ditch  Company.  323. 

License  Tax,  325. 

Assessments,  326. 

Powers  of  Manager,  328. 

Acknowledgments   by,    275,    332. 

Application  for  Patent  by,  451. 

Costs,  484. 
Crevice,  41. 
Crimes,  341. 

Cross  Lodes,  150. 

In  Conveyance,  272. 

Custom.     See  District  Rules. 


564  INDEX. 


Damage 

In  Trespass,  351. 

For  Negligence,  355. 

Measure  of,  351. 

For  Dumping,  229. 

On  Condemning  Ditch,  201. 

Dead  Work,  284. 

Deed.    See  Conveyance. 

Departure  from  Side  Lines,  158,  173,  174. 

Deposits — 

In  Place,  162,  167. 
Richness  of,  163. 

Deputy  Surveyor.     See  Mineral  Surveyor. 

Description,  72,  74. 
Defective,  76. 
In  Conveyance,  270,  305. 
Wrong  in  Patent,  147. 

Descriptive  Report,  455 

Diagram  of  Lode,  48,  50,  74. 

Showing  Excess  Width,  21. 
Showing  Apex,  174,  178,  183. 
Of  Official  Survey,  422. 

Dip,  185. 

Of  Deposits  or  Contacts,  169. 
Veins  Uniting  on,  154. 
Right  to  Follow,  167. 
Plat  Showing,  178,  183. 
Table  of  Degrees,  186. 
Discovery  on,  175. 

Discovery — 

Old  Lodes,  22. 

Under  Present  Law,  23. 


INDEX  565 


Discovery — Continued. 

After  Location,  29. 

Where  Made,  32. 

On  the  Dip,  175. 

Methods  of,  32. 

In  Open  Cut,   24,  43. 

In  Tunnel,  24,  43,  44. 

Gives  Title,  26. 

When  Complete,  27. 

By  Drill  Hole,  33. 

Time  It  Holds  Claim,  33. 

On  a  Spur,  190. 

Location  Without,  346. 

Essentiality  of,  How  Proved,  26. 

Outside  of  Discovery  Shaft,  31. 

Secret  Underground,  44. 

On  Placers,  214,  215. 

Discovery  Shaft — 

And  Discovery  Distinguished,  30. 

Statute  Requiring,  23. 

Must  Be  10  Feet  Deep,  23,  39. 

Depth,  How  Measured,  40. 

Must  Show  Crevice,  41. 

Must  Be- On  Public  Domain,  37. 

On  Town  Site,  or  Placer,  38. 

Patent  Over,  38. 

Claim  Must  Include,  39. 

Sale  of,  38. 

Time  to  Sink,  24,  61. 

Where  Sunk,  32. 

In  Slide  or  Country,  42. 

Walls  in,  41. 

For  Each  Claim,  42. 

District   Rules,  3. 

Affecting  Labor,  95. 

Ditch  Company,  323. 


56C  INDEX. 

Ditches,  193,  202. 

Abandonment  of,  93. 

Location  Notice,  195. 

Location  Certificate  or  Statement,  196. 

As  Appurtenances,  198. 

Parol  License  to  Construct,  200. 

Condemnation  Proceedings,  201. 

Surplus  or  Waste  Water,  199. 

Dower,  273. 
Drainage,  192. 

Dump,  205. 

Location  of,  232. 
For  Tailings,  233. 
For  Tunnel,  252. 

Easements,  194,  202. 

Ejectment,  344. 

Supporting  Adverse,  345,  480. 
Proper  Court,  479. 
Certificate  of  Suit,  479. 
Form  of  Complaint,  482. 
Form  of  Answer,  486. 
Nonsuit,  493. 
Verdict  in,  489. 

Electric  Power  Lines,  204. 

Eminent  Domain,  201,  204. 

Colorado  Tunnel  Acts,  255. 

End    Lines — 

On  Prior  Claims,  46. 
Parallel,  168,  171,   187. 
Converging,  173. 
Plat  Showing,  178. 
Relation  to  the  Strike,  178. 
One  Set  for  All  Veins,  178. 
Following  Lode  Beyond,  180. 


INDEX.  567 

Entry,  444. 

Annual  Labor  After,  98. 
Death  of  Applicant,  465. 
Of  Area  Not  in  Dispute,  493. 

Escrow,  281. 
Estoppel,  116. 
Examination  of  Title,  303. 
Excluded  Areas,  143,  425,  444. 
Extensions,   89. 

Fault,  164. 
Feeders,  189. 

Fees— 

Of  Surveyor  General,  418. 

In  Land  Office,  442. 

Of  Secretary  of  State,  325. 

Fiduciary   Relations,  59,  125,  127. 

Fixtures,  293. 

Float  Ore,  Location  on,  29. 

Forcible  Dispossession,  343,  369. 

Forcible   Entry,  .T>  1 

Foreign  Corporations,  331. 

Forest   Reserve,  336. 

Forfeiture,  115.         See  Abandonment. 
Parties  Essential  to,  104. 
Relocation,  before  Complete,  106,  109. 
.  To  Co-Owner,  115. 
To  Co-Lessee,  292. 
^otice,  117- 


568  INDEX. 

Forfeiture — Continued. 

Form  of  Proof,  117-119. 
Of  Placers,  114. 
Pleadings,   94,   110,   487. 

Forms — 

Acknowledgment — 
By   Individual,   267. 

By  Corporation,  275,  332. 

By  Attorney  in  Fact,  275. 

To  Articles  of  Incorporation,  316. 
Agreement  to  Sell,  276,  278,  279,  280. 
Amended  Location  Certificate,  129. 
Annual  Labor  Affidavit,   112. 
Annual  Report  of  Corporation,  322. 
Articles  of  Incorporation,  315,  323,  324. 
Assessment,  327. 
By-Laws,  318. 

Certificate  of  Stock  Paid,  321. 
Contract  to  Sell  and  to  Buy,  279. 
Designation  of  Agency,  332. 
Ditch  Incorporation,  323. 
Ditch  Statement,  196. 
Ditch  Notice,  195. 
Dump  Location  Notice,  252. 
Ejectment,  Complaint  and  Answer,  482,  486. 
Escrow,  281. 

Forfeiture  Notices,  117,  118. 
Injunction  Notice,  365,  370. 
Lease  on  Lode,  285. 
Lease  on  Placer,  290. 
Lease,  Gas  and  Oil,  295. 
Lease  and  Option,  280. 
Lode  Notice,  34,  36. 
Lode  Location  Certificate,  75. 
Mill  Returns,  289. 
Mill  Site  Location  Notice,  235. 
Mill  Site  Location  Certificate,  235. 
Miner's  Lien,  262. 
Notice  to  Ore  Buyers,  340. 
Notice  of  Leased  Mine.  265. 
Organization  Meeting,  318.    " 


INDEX.  569 

Forms — Continued. 

Placer  Notices,  216,  217. 
Placer  Location  Certificate,  218. 
Placer  Lease,  290. 
Prospector's  Notice,  34. 
Prospecting  Contract,  299,  300. 
Protest,  496. 
Quit  Claim  Deed,  268. 
Relocation  Certificate,  129. 
Resolution  to  Assess,  327. 
.     Reservation,  273. 

Sale  Subject  to  Examination,  278. 

Title  Bond,  276. 

Tunnel  Location  Notice,  253. 

Tunnel  Location  Certificate.  2",1. 

Warranty  Deed,  266. 

Working  Contract  Sale,  278. 

Forms  in  Application  for  Patent — 

A.  Request  for  Official  Survey,  -n:». 

B.  Order  for  Survey,  420. 

C.  Preliminary  Plat,  423. 

D.  Field  Notes,  423. 

E.  Approval  of  Survey,  427. 
/  The  Final  Plat,  428. 

G.  Surveyor  General's  Approval  of  Survey  and 
Certificate  of  Improvements,  428. 

//.  Approved  Field  Notes,  429. 

/.  Surveyor  General's  Certificate  to  Tran- 
script, 429. 

K.  Notice  of  Application,  431. 

L.  Proof  of  Posting,  432. 

M.  Application,  433. 

N.  Abstract  of  Title,  434. 

O.  Proof  of  Citizenship,  436. 

P.  Publisher's  Contract,  438. 

Q.  Publication  Notice,  439. 

R.  Proof  of  Notice  Remaining  Posted,  441. 

S.  Proof  of  Publication,  442. 

T.  Proof  of  Sums  Paid,  442. 

U.  Application  to  Purchase,  443. 


670  INDEX. 

Forms   in  Application   for  Patent — Continued. 

V.     Register's  Certificate  of  Posting,   445. 
W.    Register's  Final  Certificate  of  Entry,  446. 
X.     Affidavit  of  Lost  Receiver's  Receipt,  447. 
Y.     Power  of  Attorney,  450. 

Mill-Site— 

Z.     Non-Mineral   Affidavit,   451. 

AA.     Affidavit  of  Use  for  Mining  Purposes.  452. 

Placer — 

BB.     Proof  of  No  Veins,  454. 
CC.     Descriptive  Report,  455. 
DD-GG.     Exhibits  of   Descriptive   Report.    4:.7, 
458. 

Forms  in  Adverse  Claim — 

HH.     The  Adverse,  469. 

JJ.       Certificate  of  Suit,  479. 

KK.     Complaint  Supporting,   482. 

LL.      Answer,  486. 

MM-NN.     Verdicts,  489,  490. 

Fraud,      87. 

Patent  Obtained  by,  145. 

Sale  Induced  by,  282. 

Between   Fiduciaries,   125,   128,   327. 

Location  Prevented  by,  59. 

Location  Initiated  by,  87. 

Glossary  of  Mining  Terms,  526. 

Group  Claims — 

Apex  Rights  of,  177. 

Annual  Labor  on,  101. 

Patenting,  461. 

$500  Improvements,  462. 

Survey  of.     L.  O.  Reg.  130,  p.  407. 

High  Grading,  343. 
Highways,  202. 


INDKX  571 


Holidays,  476. 

Homestead,  222.     §  2341,  518. 

Idaho- 
Location  of  Lode  in,  63. 
Location  of  Placer  in,  219. 

Improvements.     See  Land  Office  Rules. 
$500  Worth,  98,  463. 
What  Counts  as,   100,   452. 
By  Tunnel,  257. 
On  Mill  Site,  452. 

Completed  Pending  Application,  464. 
On  Adverse,  472. 
Mining  Under,  241. 

Indian  Reservation,  336. 

injunction,  359. 

Against  Tailings,  230. 
Notice  to  Ore  Buyers,  340. 

Inspection  and  Survey,  303,  370. 
Inspector  of  Mines,  376. 
Interference  of  Claims,  148. 
Irrigation,  201. 

Judgment,  Lien  of,  260. 
Jumping  Act,  343,  369. 

Known   Lodes — 

Excluded  from  Placer,  223. 
What  are,  223. 
Not  Recorded,  224. 
Adverse  by,  226,  461. 
Proof  of,  227. 
Width  of,   228. 


572  INDEX. 

Land  Office  Rules,  380. 

Abstract  of  Title,  [Rule  42.] 
Adjoining  Claims,  Call  for,   [10.] 
Adverse  Claim,  [78-88.] 
Affidavit/Who  May  Take,  [69.] 
Affidavit,  Out  of  District,  [69.] 
Agricultural  and  Mineral  Contests,  [99-111.] 
Alaska,  [112,  113.] 
Annual  Labor,  [12-15,  55.] 
Application  for  Patent,  [34-57.] 

Area  and  Conflicts,  [38,  44,  149,  152,  153.] 

Diagram  and  Claim,  [37,  161.] 

Entry,  [52.] 

Proof  of  $500  Improvements,  [25,  48-50.] 

Lost  Records,  [43.] 

Newspaper,  [45-47,  89.] 

Notice  of,  [46.] 

Numbering  Surveys  and  Entries,   [36,  72.] 

Official  Survey,  [34,  35.]    General  Provisions, 
[115-169.] 

Posting  Plat,  [39,  40,  51,  73.] 

Proof  of  Sums  Paid,  [52.] 

Publisher's  Contract,  [45.] 

Statement  of  Claimant,  [41.] 
Building  Stone,  [20,  114.] 
Certificates  of  No  Suit,  [76,  88.] 
Chain  of  Title  Broken,  [74,  75.] 
Citizenship,  Proof  of,   [66-70.] 
Deputy  Surveyors,  [89-98,  115-121,  128.1 
Descriptive  Report  on  Placer,  [167.] 
Errors  in  Surveys,  [162-166.] 
Fees  and  Charges,  [89-98,  120,  122.] 
Forest  Reserves,  [114.] 
Forfeiture,  [15.] 
Group   Surveys,   [130.] 
Hearing  to  Determine  Character  of  Land,  [99- 

111.] 

Improvements,   [156-160.] 
Location,  [4-11.] 
Lode  Claims',  Length,  [4.] 

Width,   [5.] 


INDKX  573 

Land  Office  Rules — Continued. 

Size,  [6.] 

In  Placer,  [26,  161.] 
Mill  Sites,  [61-65,  150.] 
Mineral    Surveyors,    [89-98,    115-121,    128.  | 
Monuments,  [9,  36,  135-142,  147,  158.] 
Oil  Claims,  [21.] 
Old  Lodes,  Status  of  [2.] 
Placer  Claims,  Location  and  Patenting  of,  [ID 

30,  58-60.] 

Possessory  Right  by  Limitation,  [74-77.1 
Protest,  [53.] 

Railroad  Selections,  [102.] 
Record,  [11,  18.] 
Salines,  [31-33.] 
School  Lands,  [20.] 
Side  Veins,  [2,  3.] 
Stakes  and  Corners.  |10,  143-146.] 
Ties,  [9,  36,  135-142,  147,  158.] 
Timber,  [114.] 

Trustee,  Application  by,  [54.] 
Tunnels,  [16-18.] 

Larceny,  342. 

Lease,  284. 

On  Lode,  285. 

On  Placer,  290. 

On  Oil  and  Gas,  295. 

By  Agent,  293. 

And  Option,  280. 

Assignment  of,  293. 

Non-Assessable  Interest  in,  294. 

Ledge,  161. 

Length  of  Lode  Claim — 

Before  May  10,  1872,  12. 
At  Various  Dates,  15. 
Since  May  10,  1872,  15. 
How  Distributed,  16. 
Excessive,  16. 


674  INDEX. 

License,  297. 

Of  the  United  States,  7. 
To  Construct  Ditch,  200. 

Liens,  260. 

How  Affected  by  Patent,  260. 

Miner's,  261. 

Covenant  Against  in  Lease,  287. 

Surveyor's  264. 

In  Examination  of  Title,  306. 

Limitations,  373. 

Location,  22-60. 

Definition  of,  35. 

Statutory  Requirements  in  Each  State,  61-69. 
Formal  Parts  of,  35. 
Of  Old  Lodes,  22. 
Of  New  Lodes,  23. 
Of  Placers,  208. 
Of  Tailings  Claim,  232. 
Diagram  of,  48,  50,  74. 
Not  Covering  Vein,  49,  158. 
Before  Discovery,  29,  346. 
Must  Be  Good  When  Made,  37,  490. 
Excessive,  16. 

Possession  Without,  86,  88,  346. 
One  or  Both  Parties  in  Default,  83,  86. 
Initiated  by  Trespass,  83,  87,  217. 
Presumption  of  349. 
Land  Office  Rules,  380. 
Without  Surveyor,  49. 
Of  Tunnel  Site,  250. 
Of  Lode  Cut  in  Tunnel,  253. 
•  Across  the  Strike,  59. 

Conflicting,  148,  272. 

Location  Certificate,  69-89. 

Statutory  Requirements,  61-69. 
Form  of  Lode,  75. 
As  Proof  of  Location,  349. 
Contradicting,  80. 


INDEX.  575 


Location  Certificate — Continued. 
Test  of  Sufficiency,  79. 
Amended,  129. 
Where  Voidable  Only,  133. 
Form  of  Ditch,   196. 
Form  of  Placer,  218. 
Form  of  Mill  Site,  235. 
Form  of  Tunnel,  251. 
In  Examining  Title,  304. 
Verification  of,  64,  81. 

Location   Monument.  78,  408. 

Location  Notice — 

Statutes  Requiring,  23,  61-69. 

On  Lode,  34,  36. 

On  Ditch,  195. 

On  Placer,  216,  217 

Changing  Names  on,  135. 

Location  Stake,  35. 
Notice  on,  36. 
Removal,  343. 

Lode,  Defined,  161. 

Length  of  Old  Claims,  12. 

Present  Length,  15. 

Width,  17-21. 

Discovery   and    Location, 

Size  and  Value,  30,  163. 

Uniting  on  Dip,  154. 

Wider  than  Claim,  161. 

Proof  of  Continuity,  164-166. 

Side  Viens,  156,  157. 

"In  Place,"  162,  167. 

Test  of  Value,  164. 

Record,  69. 

Diagram,  48,  50,  74. 

Interference,  148. 

Within  Placer,  222. 

Cross,  150. 

Location  Over  Placer,  227,  248. 


576  INDEX. 

Lode — Continued. 

Cut  in  Tunnel,  253. 

Cubic  Incidents  of,  186. 

And  Placer  Distinguished,  453. 

Group  of,  in  Patent,  461. 

Blanket  Veins,  170. 

Change  of  Name,  135. 

Lodes,  Veins  and   Ledges,  161. 
Malicious  Mischief,  343. 
Mandatory  Writ,  369. 
Married  Woman,  273,  305. 
Measure  of  Damages,  351. 
Mexican  Grant,  311. 
Mill   Returns,  289. 

Mill  Site,  234. 

Application  for  Patent  on,  451. 
Adverse  and    Protest,   240,   477. 
Separate  Application,  239. 
Must  Be  Non-Mineral,  238. 
Location  Certificate,  235 
Patented,  243. 
Land   Office   Rules,    395. 
Non-Mineral  Affidavit,  451. 
Statute,  §2337,  517. 

Mineral   Land,  207. 

Comparative   Value,    164,   238. 

Mineral   Surveyor,   400. 
Mineral  Value,  163,  213. 

Miner's  Lien,  261. 

Covenant  Against,  in  Lease,  287. 

Miner's  Rights,  7. 


INDEX  577 

Miner's  Title- 
Recognition  of,  7. 
Nature  of  Estate,  136. 

Mining  Claim.     See  Claim,  Possessory  Claim,  Lode. 
Mining  Districts,  3. 
Mining  Lease.     See  Lease. 
Minors,  58,  119. 

Montana — 

Location  of  Lode  in,  63. 
Location  of  Placer  in,  219. 

Monuments,  52,  55,  74.     See  Land  Office  Rules. 

Mortgage,  Lien  of,  260. 

By  Corporation,  315. 

i 

Natural  Gas,  Lease,  295. 
Naturalization,  308. 
Negligence,  355. 

Nevada— 

Location  of  Lode  in,  65. 
Location  of  Placer  in,  220. 

New  Mexico- 
Location  of  Lo'de  in,  66. 
Location  of  Placer  in,  221. 

Newspaper,  In  Application  for  Patent,  438. 
In  Forfeiture,  117. 

North  Dakota- 
Location  of  Lode  in,  66. 
Location  of  Placer  in,  221. 

10 


678  INDEX. 

Notice- 
Lode  Location,  34-36. 
Placer  Location,  216,  217. 
Renewing,  34. 
Changing  Names  on,  135. 
On  Underground  Discoveries,  44. 
Injunction,  365,  370. 
Of  Forfeiture,  117. 
To  Ore  Buyer,  340. 
Of  Assessment,   527. 

Nuisance,  234. 

Oil  and  Gas  Lease,  295. 

Oil  Land,  as  Placer,  211,  514. 
Annual  Labor  on,  115. 

Oil  Wells,  344. 

Open   Cut,  Discovery  in,  24,  43. 

Option,  275,  280. 

Ore  Buyers,  339. 

Ore  Contracts,    337. 

Ore  Salting,  342. 

Ore  Stealing,  342. 

Oregon — 

Location  of  Lode  in,  67. 
Location  of  Placer  in,  221. 

Overlapping  Claims,  125,  143,  150,  153 
Annual  Labor  on,  108. 

Partnership,  292. 

Patent,  136. 

Application  for,  418. 
Land  Office  Rules,  386. 


INDKX  579 

i 
Patent — Cuntinuril. 

Not  Divest  Easements,  203. 

Lodes  Dipping  Under,  244. 

In  Examination  of  Title,  305. 

To  Assignee,  465. 

Suit  to  Cancel,  146,  373. 

Its  Common  Law  Grant,  175,  179. 

Pay  Ore,  In  Discovery,  30. 
Penal   Provisions,  341. 
Philippine   Islands,  503. 
Pipe  Lines,  519. 

Placer,  208. 

Patented  as  a  Lode  Claim,  146. 
Appropriation  of  Water,  195. 
What  is  Classed  as,  210. 
Location  Certificate,  218. 
ation  Notice,  216,  217. 
Size  of,  215. 

Location  on  Surveyed  Land,  218. 
Lease  of,  290. 
Association  to  Locate,  215. 
Statutes  of  U.  S.  and  Colorado,  208,  209. 
Statutes  of  Other  States,  219-221. 
Lodes  Within,  222,  459,  460. 
Annual  Labor  on,  li:i. 
Application  for  Patent,  223,  453. 
Width  of  Lode  in,  228. 
Forfeiture  of,   ill. 
What  Patent  Covers,  243. 
Application  for  Group,  461. 
Land   Office  Rules,  384,  394,  413. 

Pleading- 
Abandonment  and   Forfeiture,   94,   110,  487. 

Possession — 

Without  Record,  82. 
During  Location  Period,  86. 


580  INDEX. 

Possession — Continued. 

Defective  Record  Aided  by,  88. 

As  Notice,  307. 

Without  Location,  346. 

How  Proved,  348. 

In  Ejectment,  346. 

« 
Possessory  Claim,  7,  9. 

Abandonment,  10,  89. 

Vested  Estate  and  Freehold,  9,  10. 

Power  of  Attorney,  450. 

Proof- 
On  Citizenship,  436. 
Of  Labor,  110-112. 
Of   Forfeiture,   116,   118. 
Of  No  Known  Lodes,  454. 

Prospect,  Transfer  of,  282. 

Abandonment  of,  93. 
Prospecting  Contract,  299. 
Prospector,  Rights  of,  27. 
Protest,  496. 
Publication- — 

To  Enforce  Forfeiture,  117. 

In  Patent  Application,  438. 

Proof  of,  442. 

Period  of,  439. 

Public  Domain — 

Occupation  of,  7. 
Paramount  Title  in,  9. 
Segregation  of  Claims,  139. 

Quarry,  as   Placer,  212. 
Quartz,  in  Discovery,  31. 
Quit  Claim  Deed,  268. 


INDEX.  681 

Real   Estate,  10. 

Dump  Is,  206. 

Receiver's  Receipt,  147,  446. 
Cancellation  of,  444. 
Affidavit  of  Lost,  447. 

Record,  69. 

Necessity  for,  71. 

Time  to  Record,  72. 

Of  Location  Notice  as  Certificate,  72. 

Definition  of,  73. 

Description  in.  74 

Possession  Without  Record,  82. 

Statute  Requiring,  69. 

Priority,  81. 

Relation — 

Doctrine  of,  105,  132,  140,  155. 
Water  Rights,  199. 

Relocation — 

Upon  New  Discovery  Shaft,  32. 

Before  Year  Expires,  109. 

Of  Abandoned  Claims,  120. 

Instead  of  Annual  Labor,  124. 

After  Patent  Applied  for,  125. 

Of  Void  Claim,  488. 

Pleading,  94,   110,   487. 

By  the  Owners,  128. 

Form  of  Certificate,  129. 

After  Loss  of  Discovery  Shaft,  131. 

Replevin,  358. 

Reservation — See  Severance. 

In  Town   Site  Patents,  245. 

In  Patents  Generally,  242,  247. 

Indian,  336. 

Military,   519. 

Of  Minerals  by  Deed,  273. 


582  INDEX. 

Right  of  Way,  202. 

To  Cross  Lodes,  151. 
To  Oil  Pipe  Lines,  519. 

Roads,   202. 

Rock  in  Place,  162,  167. 

Royalty,  285,  291. 

Salines,  212,   386,    514. 

Sampling   and   Smelting  Companies,  324,  339. 
Notice  to,  340. 

Scales,  False,  341. 
School  Claims,  11. 

School    Lands,  244. 

Location  of  Claim  on,  248. 

School   of  Mines,  379. 

Seepage,  Show  of  Mineral  by,  164. 

Severance,  240. 

Side   Lines- 
Departure  of  Vein  from,  158,  173,  174. 
Relation  of  Apex  to,  173. 

Side  Veins,  156,  157. 

End  Lines  Control,  178. 
Dip  Rights  of,  187. 

Soldiers'  Claims,  12. 

South  Dakota — 

Location  of  Lode  in,  67. 
Location  of  Placer  in,  221. 

Spurs,  189. 


INI> 

Stakes- 
Statute  Requiring,  23. 
Center  and  Corner  Posts,  23,  48. 
On  Prior  Claim,  46,  80. 
Time,  to  Set,  47. 
On  Cross  Cut  Discoveries,  44. 
Must  Cover  Apex,  49. 
Marks  on,  50. 
On  Precipitous  Ground,  55. 
Maintaining,  57. 
Overlapping,  80. 
On  Placer,  217,  218. 
Removal,  343. 
Size  of,  54. 

State  Lands,  Location  of  Claim  on,  248. 

Statutes- 
Repealed  Act  of  Congress,  504. 
Text  of  Acts  of  Congress,  506. 
Timber  Act,  524. 
Timber  and  Stone  Act,  521. 
Coal  Lands,  519. 
Placer  A.  C.,  208,  222. 
1,500-Foot  Act,  15. 

Stock — See  Corporations. 
Paid  in  Lands,  314. 
Certificate  of  Paid  Up,  321. 
Assessment  of,  317,  326. 

Stockholders,  314,  315. 
Stone,  Building,  209,  521. 
Sunday,  60,  476. 

Surface — 

Acreage  of,  222. 

Mining  Under  Improvements,  241. 

Severance,  240. 

Separate  Ownership  of,  and  Minerals,  240. 

Right  to  Tunnel  Under,  254. 


684  INDEX. 

Survey — 

For  Patent,  405,  420. 

For  Adverse,  472. 

For  Location,  49. 

With  Inspection,  370. 

On  Examination  of  Title,  303. 

Land  Office  Rules  for,  405. 

Presumed  to  Cover  Vein,  149. 

Overlapping,  150,  153. 

Apex  Leaving,  173,  174. 

Irregular,  191. 

Angles  to  Allow  for  Slope,  191. 

Surveyor  General's  Circular,  As  to  Fees,  418. 
Surveyor's  Lien,  264. 

Table,  of  Atomic  Weights,  Symbols,  Specific  Gravity 
and  Fusing  Points,  540. 

Table  of  Cases  Cited,  541. 

Tailings,  229. 

Abandonment  of,   93. 
The  Debris  Cases,  233. 

Taxes,  258. 

Tenants  in  Common,  333. 
Non-Joinder  of,  350. 
Collusion  With  Third  Parties,  59. 
Relocation  by,  125. 
Rights   of,   in    Patent,    127,   306. 
Lease  by,  292. 
License  from,  203. 
Adverse  by,  474. 

Tide  Lands,    499,   501. 

Ties,  52,  53,  74.     See  Land  Office  Rules. 
To  Discovery  Shaft,  75. 
On  Placer,  217. 


INDEX.  585 

Timber,  343,  521,  524. 
Timber  and  Stone,  213,  521. 

Time- 
To  Perfect  Location,  47. 
To  Adverse,  475. 
To  Record,  72. 
Essence  of  Contract,  277. 

Title- 
Abstract  of,  in  Examining  Title,  304. 
Abstract  of,  in  Land  Office,  434,  471. 
After  Acquired,  305. 
Possessory,  7,  9. 
Patented,  138,  141. 
After  Entry,  137. 
Color  of,  159. 
In  Third  Party.  349. 
In  Neither  Party,  492. 

Title   Bond,  276. 
Town  Sites,  245. 
Trails,  203. 
Tramways,  204. 

Trespass,  351. 

Rights  Initiated  by,  83,  87,  217. 
Relocator,  no  Trespasser,  109,  122. 
By  Surface  Owner,  241. 
Not  Larceny,  342. 
Measure  of  Damages,  351. 

Tunnel  Sites,  249. 

Diverse   Ownership   in,    102. 
Discovery   in   Tunnel,   24,  43. 
Record  of,  250. 
Location   Certificate,   251. 
Location  Notice,  252. 
Claiming  Over  3,000  feet,  258. 


586  INDEX. 

Tunnel  Sites — Continued. 

Abandonment  of,  256. 
Annual  Labor  in,  257. 
Land  Office  Rules,  383. 

Utah- 
Location  of  Lode  in,  68. 
Location  of  Placer  in,  220. 

/ 

Variations,  56,  190. 

Vein — See  Lode. 

Irregularity  of,   148. 

Ventilation,  344. 

Verdict,  in  Adverse  Suit,  489. 

Verification,  of  Location   Certificate,   64,  81. 

Vertical  Planes- 
Right  to  Vein  Within,  175,  179. 

Walls,  188. 

In  Discovery,  41. 

Warranty  Deed,  266. 

Conveys  After  Acquired  Title,  305. 

Washington — 

Location  of  Lode  in,  68. 
Location  of  Placer  in,  220. 

Water.    See  Ditches,  Appropriation,  Drainage. 
Weights  and  Measures,  341. 
Width  of  Lode  Claims,  17-21. 
Witnesses,  to  Deeds,  273. 


INDEX.  587 


Working  Contracts,  302. 

Wyoming — 

Location  of  Lode  in,  69. 
Location  of  Placer  in,  221. 
Position  of  Discovery  Shaft,  19. 

Zone,  Mineral  Bearing,  165. 


We  desire  to  express  obligations  for  courteous 
suggestions  and  information  as  to  the  local  law  and 
custom  in  their  respective  States,  to  the  following 
attorneys:  D.  D.  Williams,  Boise,  Idaho;  Cullen, 
Day  d  Cullen,  Helena,  Montana;  Corlett  Downey, 
Laramie,  Wyoming;  Willis  B.  Herr,  Seattle,  Wash- 
ington; C.  C.  Dey,  Salt  Lake  City,  Utah;  Curtis  H. 
Lindley,  of  San  Francisco,  California;  Hon.  Jas.  W. 
Fowler,  Dead  wood,  South  Dakota;  J.  C.  Flanders, 
Portland,  Oregon;  J.  B.  Woodward,  Phoenix,  Ari- 
zona; W.  E.  So  Relle,  Goldfield,  Nevada,  and  to 
Horace  F.  Clark,  of  Washington,  D.  C.,  for  points 
in  Land  Office  practice. 

M.  &  DE.  S. 

Denver,  March  31,  1908. 


